IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Appellant,

v.

DANILO ELIAS SALGUEROESCOBAR,

Respondent.

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No. 35209-9-III

UNPUBLISHED OPINION

LAWRENCE-BERREY, C.J. — Without any tangible evidence, a jury found Danilo 

Salguero-Escobar guilty of first degree rape and first degree burglary. Three days later, 

defense counsel received cellular phone records that he had earlier subpoenaed. The 

records contradicted the complaining witness’s testimony. The trial court granted 

Salguero-Escobar’s motion for a new trial on the basis of CrR 7.5(a)(3), newly discovered 

evidence. 

The State appealed, and we reversed. In our prior decision, we determined that the 

unintroduced evidence did not satisfy the newly discovered evidence test. In reversing, 

we remanded with instructions for the trial court to determine whether a new trial should 

FILED

MAY 10, 2018

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 35209-9-III

State v. Salguero-Escobar

2

be granted under a different basis, CrR 7.5(a)(8), that substantial justice has not been 

done. 

On remand, the trial court considered the cellular records and additional tangible 

evidence that further contradicted the complaining witness’s trial testimony. After 

briefing and argument, the trial court determined that Salguero-Escobar should receive a 

new trial because substantial justice has not been done. The trial court then entered 

detailed findings and conclusions explaining the bases for its determination.

The State again appeals. We reject its arguments and affirm. 

BACKGROUND

We previously set forth the facts and the procedural background of this case in

State v. Salguero-Escobar, noted at 197 Wn. App. 1018, 2016 WL 7388651. We refrain 

from doing so again. But a short discussion of this court’s prior decision and what 

happened on remand are appropriate.

In Salguero-Escobar, we reviewed the trial court’s order granting SalgueroEscobar a new trial on the basis that cellular records, which contradicted the complaining 

witness’s trial testimony, constituted newly discovered evidence under CrR 7.5(a)(3). 

Counsel for Salguero-Escobar had subpoenaed the cellular records before trial, but the 
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3

cellular company delayed sending the records and defense counsel did not receive them 

until three days after the jury’s guilty verdict. 

The trial court determined, and we agreed, that the cellular records were material, 

were not cumulative of evidence introduced at trial, and would have probably changed the 

result of the trial.1 Specifically, the records would have contradicted complaining witness 

Joette Talley’s trial testimony that she barely knew Salguero-Escobar and that she had 

never spoken to him on the phone. The records established that Talley had called 

Salguero-Escobar late one night soon after they first met and that they spoke for 13 

minutes. We determined, however, that the cellular records did not satisfy one of the five 

prongs of the “newly discovered evidence” test and concluded that the trial court had 

erred by granting a new trial on that particular basis. 

We then noted our ability to affirm the trial court on any basis supported by the 

record. We suggested that the facts likely warranted affirming on the basis of

CrR 7.5(a)(8), that substantial justice has not been done. But instead of affirming on that 

 

1 The trial court explained: “There was no physical, documentary or other type of 

non-testimonial evidence offered by the State [at trial] to support Ms. Talley’s testimony.

In the truest sense, the result of this case was based entirely on the jury’s assessment of 

the credibility of . . . the defendant and Ms. Talley.” Clerk’s Papers (CP) at 225.
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basis, we determined that the proper course was to remand so the trial court could enter 

formal findings and conclusions. 

On remand, the trial court considered evidence in addition to the cellular records. 

The trial court considered photographs taken by Salguero-Escobar inside Talley’s house. 

These photographs further contradicted Talley’s trial testimony, which was that SalgueroEscobar had never been inside her house except the night of the alleged rape. One 

photograph even showed Talley in a mirror’s reflection. The trial court found, “the 

photographs, should they be admitted . . . would . . . bolster the defendant’s testimony . . . 

and again impeach Ms. Talley’s testimony.” Clerk’s Papers (CP) at 226. 

The trial court granted Salguero-Escobar’s motion for a new trial on the basis that 

substantial justice has not been done. In its findings, the court noted that trial occurred 

only 47 days after the charges were filed. The trial court explained why the cellular 

records were not introduced at trial and why Salguero-Escobar was not at fault for this. 

The court explained that defense counsel had subpoenaed the cellular records, had 

notified the cellular company of the impending trial date, and had called the company 

repeatedly to implore it to expedite production of the records. Salguero-Escobar was not 

at fault because he had once requested and obtained a trial continuance and had asked for 
No. 35209-9-III

State v. Salguero-Escobar

5

a second trial continuance. But because of his own counsel’s contrary argument, the trial 

court denied Salguero-Escobar’s second continuance request. 

The trial court explained with particularity why the original verdict, based on 

nontangible evidence, must here give way to a future verdict based on the unintroduced

tangible evidence: 

2.1 The credibility of the defendant and of the complaining witness 

was the primary and most dominant feature of this trial. Thus, any evidence 

that substantially, perhaps fatally undermines the credibility of the 

complaining witness is beyond significant; it is critical.

. . . . 

2.4 A criminal case is not about winning and losing. It is about 

justice, and assuring that justice is done.

2.5 In this case, where the jury had no tangible evidence, but 

nevertheless convicted the defendant of serious felony charges, justice 

demands the grant of a new trial so a second jury might examine . . . 

tangible evidence central in determining the credibility of the two . . . key 

witnesses.

CP at 226-27.

ANALYSIS

A. STANDARD OF REVIEW FOR GRANTING OR DENYING A NEW TRIAL

An appellate court reviews a trial court’s decision whether to grant or deny a new 

trial for an abuse of discretion. State v. Williams, 96 Wn.2d 215, 221, 634 P.2d 868 

(1981). “A trial court abuses its discretion when its decision is manifestly unreasonable 
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or exercised on untenable grounds or for untenable reasons.” State v. Lord, 161 Wn.2d 

276, 283-84, 165 P.3d 1251 (2007). A trial court also abuses its discretion when it relies 

on unsupported facts, takes a view that no reasonable person would take, applies the 

wrong legal standard, or bases its ruling on an erroneous view of the law. Id. at 284. 

Where a trial court grants a new trial, greater discretion is allowed, and a stronger 

showing of abuse of that discretion is required to set aside such an order. State v. 

Hawkins, 181 Wn.2d 170, 179-80, 332 P.3d 408 (2014). 

B. GRANTING A NEW TRIAL BECAUSE SUBSTANTIAL JUSTICE HAS NOT BEEN 

DONE

CrR 7.5(a) authorizes a trial court to grant a criminal defendant a new trial if one 

of eight enumerated causes has materially affected a substantial right of the defendant. 

One of the enumerated causes is “[t]hat substantial justice has not been done.” 

CrR 7.5(a)(8).

Prior to the rule, courts had recognized that the decision to grant a new trial on the 

basis that substantial justice has not been done was “an exercise of the inherent power of 

a trial court.” Cabe v. Dep’t of Labor & Indus., 35 Wn.2d 695, 697, 215 P.2d 400 (1950). 

“The right of a trial judge to set aside a verdict if [the judge] believes 

that substantial justice has not been done is probably as old as the jury 

system itself. . . . [T]he right to trial by jury and the right of the trial judge 

to set a jury verdict aside and grant a new trial, on the ground that 
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substantial justice has not been done, have existed side by side for centuries 

in the English courts, and in our state courts since their creation . . . .”

Id. at 699 (quoting Bond v. Ovens, 20 Wn.2d 354, 147 P.2d 514 (1944)).

In Brennan v. City of Seattle, 39 Wash. 640, 645-46, 81 P. 1092 (1905), our high 

court recognized the preeminent role that justice must play in our system of 

jurisprudence:

But, if anything has prevented the ascertainment of the truth as to the facts 

of a case, in arriving at or announcing a verdict, it necessarily follows that a 

judgment thereupon cannot be just or right. Courts should not permit 

results of this kind to stand if the law furnishes any remedy for the wrong. 

To enforce a rule of law or procedure according to the letter, and thereby 

stifle the spirit, is a perversion of justice that should not be tolerated in our 

jurisprudence.

The rule requires the trial court to give definite reasons of law and facts for its 

order. CrR 7.5(d). When evidence not introduced at trial is the basis for concluding that 

substantial justice has not been done, the trial court must explain with particularity why 

the trial was unfair. See State v. Evans, 45 Wn. App. 611, 614, 726 P.2d 1009 (1986). 

The purpose for requiring particularity is to assure that the trial court has dealt 

fairly and properly and to enable appellate review of the trial court’s exercise of 

discretion. Williams, 96 Wn.2d at 228. Allowing meaningful appellate review places the 
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burden squarely on the reviewing court to determine whether the trial court properly 

granted a new trial:

[I]t is our hope that trial judges who believe, for whatever reason, that 

substantial justice has not been done will grant new trials, giving their 

reasons therefor in some detail. Should this court then reverse any trial 

judge, . . . the onus will be upon us and not on the trial judge.

Sullivan v. Watson, 60 Wn.2d 759, 765 n.2, 375 P.2d 501 (1962).

Application of legal standards

Here, the trial court concluded that substantial justice has not been done based on 

cellular records and photographs not introduced at trial. The trial court explained with 

great particularity why Salguero-Escobar did not receive a fair trial. First, there was little 

time between the filing of the two serious charges and the trial. The State filed the 

charges on October 14, 2015. The initial trial was set for November 2, 2015. Later, at 

defendant’s request, trial was continued to December 1, 2015. 

Second, Salguero-Escobar was not at fault for the failure to present the cellular 

records to the jury. Defense counsel had issued a subpoena and had repeatedly urged the 

phone company to expedite the records. Salguero-Escobar, personally, requested a 

second trial continuance but because of his counsel’s contrary argument, the trial court 

denied the request. 
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Third, a verdict should be based on good evidence. Here, the jury convicted the 

defendant of two serious felonies without any tangible evidence. The trial court reasoned 

that a trial is not about winning or losing, but about justice. For this reason, a second jury 

should be able to consider critical tangible evidence that seriously undermines the 

complaining witness’s credibility.

Having set forth the trial court’s particular reasons why Salguero-Escobar did not 

receive a fair trial, we now consider the State’s arguments why the trial court erred.

1. The State argues that the trial court erred in granting a new trial based on 

cumulative evidence

The State cites Williams, 96 Wn.2d at 224, for the proposition that a trial court 

may not grant a new trial because of unintroduced evidence that is merely cumulative of 

evidence introduced at trial. Preliminarily, we note that Williams did not discuss the 

substantial justice basis for granting a new trial. Instead, Williams discussed the newly 

discovered evidence basis for granting a new trial. For purposes of our analysis, we will 

assume that a trial court may not grant a new trial under CrR 7.5(a)(8) when the 

unintroduced evidence is merely cumulative of evidence introduced at trial.

In Williams, the State charged the defendant with the robbery, kidnapping, and 

murder of a 7-11 convenience store clerk. Williams, 96 Wn.2d at 217. During the 
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robbery, a hidden camera was activated. Id. The camera snapped several pictures, 

including two frames of the robber’s profile. Id. The profile pictures showed a large 

black man, wearing glasses, and dressed in an olive drab fatigue jacket and a cap. Id. 

Copies of the pictures were distributed in the neighborhood. Id. Weeks later, the 7-11 

clerk’s body was found in a vacant house on Beacon Avenue. Id. She had been stabbed 

numerous times. Id. An anonymous caller later informed police that the defendant was 

possibly the man in the robbery photographs. Id. Police interviewed the defendant, who 

admitted that he had been to the vacant house on Beacon Avenue three or four times. Id.

at 218. In addition, he closely resembled the man in the photographs and admitted that 

his wife and a close family friend thought he was the man in the photographs. Id.

At trial, the State’s two eyewitnesses identified the defendant as the man they had 

seen at the 7-11 the night of the robbery. Id. The defendant produced 18 witnesses to 

support his defense of mistaken identity. Id. at 219. His central witness testified that he 

had seen a man the night of the 7-11 robbery dressed like the man in the photographs, but 

who was not the defendant. Id. The defense witness said he saw this same unidentified 

man at the Veterans Administration (VA) hospital days after the robbery. Id. A 

pharmacist at the VA hospital corroborated this. Id. The jury, who could compare the 
No. 35209-9-III

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photographs admitted at trial to the defendant who sat before them, found the defendant 

guilty of the charged crimes. Id.

After the trial, the defendant moved for a new trial based on finding a security 

guard who worked for the VA hospital who could corroborate the aforementioned 

defense witnesses. Id. at 220. Due to this and other reasons, the trial court granted the 

defendant a new trial. Id.

In reversing the trial court, Williams noted that the security guard’s testimony 

would be cumulative evidence, which alone did not justify a new trial. Id. at 224-25. 

Williams defined “cumulative evidence” as “‘additional evidence of the same kind to the 

same point.’” Id. at 223-24 (quoting Roe v. Snyder, 100 Wash. 311, 314, 170 P. 1027 

(1918)). The court reasoned that if such evidence alone justified a new trial, there would 

be no end to litigation. Id. at 224. 

Here, neither the cellular records nor the photographs inside the complaining 

witness’s house is cumulative evidence. The trial court found that the jury considered 

only testimonial evidence and that it had no tangible evidence on which it could base its 

credibility determinations. The unintroduced tangible evidence is not the same kind to 

the same point as the evidence introduced at trial. On this basis alone, we could 

distinguish Williams. But there is an additional basis.
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In Williams, the photographs of the robber introduced at trial were tangible 

evidence and strongly established the defendant’s guilt because the jurors could compare 

the photographs with the defendant, who sat before them. Id. at 219. The addition of 

testimony from the security guard would be cumulative of the 18 other defense witnesses 

called to support defendant’s mistaken identity defense. A 19th defense witness on the 

same issue was therefore unimportant. Here however, the State obtained a conviction 

without any tangible evidence. Here, the trial court found that the new tangible evidence, 

the cellular records and the photographs, would be critical to a second jury’s assessment 

of the credibility of the two key witnesses.

2. The State argues that the trial court erred in granting a new trial based on 

its own assessment of witness credibility

The State correctly argues that a trial court may not substitute its judgment of 

witness credibility for that of the jury. Where there is substantial evidence on both sides 

of an issue, it is error for a trial court to usurp the role of the finder of fact and, as a 13th

juror, substitute its own judgment. Id. at 227. But here, the trial court did not grant 

Salguero-Escobar a new trial because it thought that the complaining witness was 

untruthful or that Salguero-Escobar was truthful. 
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Instead, the trial court granted Salguero-Escobar a new trial because the jury based 

its verdict on testimony alone, which meant “any [tangible] evidence that substantially, 

perhaps fatally undermines the credibility of the complaining witness is beyond 

significant; it is critical.” CP at 226-27. And because Salguero-Escobar was not at fault 

for the failure to present the cellular phone records to the jury, “justice demands the grant 

of a new trial so a second jury might examine . . . tangible evidence central in determining 

credibility of the two . . . key witnesses.” CP at 227. The trial court’s findings and 

conclusions establish that the trial court did not grant a new trial based on its own 

assessment of witness credibility; rather, it granted a new trial so that a second jury could 

consider unintroduced tangible evidence that was critical in determining the credibility of 

the two key witnesses. 

Here, the trial court gave definite reasons of law and facts for its order. The 

reasons it gave described with great particularity why Salguero-Escobar had not received 

a fair trial. We therefore conclude that the trial court did not abuse its broad discretion in 

granting a new trial.

We summarily address the State’s remaining arguments.
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3. The State argues that a new trial may not be granted under CrR 7.5(a)(8) 

unless the unintroduced evidence meets the newly discovered evidence test 

of CrR 7.5(a)(3)

The State argues that a trial court may not grant a new trial under CrR 7.5(a)(8), 

that substantial justice has not been done, unless the unintroduced evidence meets the 

newly discovered evidence test of CrR 7.5(a)(3). The State does not cite any authority to

support its argument. We therefore decline to consider it. McKee v. Am. Home Prods. 

Corp., 113 Wn.2d 701, 705, 782 P.2d 1045 (1989).

4. The State argues that a new trial under CrR 7.5(a)(8) may not be granted 

when the State presents sufficient evidence to convict 

The State claims that the trial court’s order for a new trial “calls into question the 

sufficiency of the evidence” to convict. Appellant’s Br. at 27. The State then devotes 

several pages of its brief explaining that it presented sufficient evidence to convict 

Salguero-Escobar. The State then argues: “Whether substantial justice has been done is 

contingent upon whether a reasonable jury could have found the elements of the crime 

charged beyond a reasonable doubt.” Appellant’s Br. at 32. In essence, the State argues 

that a new trial may never be granted under CrR 7.5(a)(8) if the State presents sufficient 

evidence to convict. This is not the law, and the State fails to cite any authority to support 

it. We therefore decline to consider it. McKee, 113 Wn.2d at 705.
No. 35209-9-111 

State v. Salguero-Escobar 

5. The State argues that defense counsel provided effective assistance of 

counsel 

The State lastly argues that defense counsel provided effective assistance of 

counsel. The State fails to explain how this factors into our analysis. We therefore do not 

address the argument. 

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. 

WE CONCUR: 

Fearing, J. 

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