A year after a jury hung on whether a Paso Robles man raped his girlfriend’s intoxicated aunt during a family visit, a second, more visibly agitated jury on Monday told the judge they’re split on the same charge and likely won’t come to an agreement.
The decision — following two days of contentious deliberations — marks the end of a second 2-week-long trial for Rian Mabus, 32, a former U.S. Marine. A previous jury in July 2016 hung 6-6 on the charge of rape of an intoxicated person and acquitted him of a second charge, rape of a person who is “unconscious of the nature of the act.”
Despite the likely impasse, Superior Court Judge John Trice told jurors to return to the courtroom Tuesday morning, when he will make the call on whether to declare a mistrial or order jurors to try to work it out.
One visibly upset juror on the way out the door called the decision “a waste of f---king time.”
Deliberations in Mabus’ second trial have been heated, with Trice on Thursday addressing a confrontation between two unidentified jurors, and allowing deliberations to continue in the courtroom as opposed to the normal jury room, which is cramped and can add to jurors’ agitation, Trice said.
On Monday morning, one juror was excused and an alternate sworn in after the juror cited a “breakdown in communication” and an unspecified health issue. Jurors reported to Trice at about 4:30 p.m. Monday that they couldn’t reach an agreement even with the alternate.
The jury foreperson told Trice that the jury has taken four votes, the first and most recent of which were both split 9-3, though she did not say to which side the jury leaned. Asked by Trice if more time would reasonably lead to a verdict among the seven women and five male jurors, the foreperson said no.
One unidentified juror interjected, and told Trice: “Come hell or high water, it doesn’t matter how long we sit in this room — we’re done.”
Trice ordered the jury to return at 10 a.m. and indicated he would accept a mistrial, but he added, “Sometimes, it helps to sleep on it.”
On the stand, the alleged victim, a 41-year-old Tehachapi resident referred to in court as Jane Doe, claimed she was raped during a last-minute trip to San Luis Obispo County during Labor Day weekend 2014.
After they weren’t able to find a camping spot, Doe, her 16-year-old daughter and her daughter’s 16-year-old boyfriend stayed at Mabus’ Atascadero apartment that he shared with Doe’s then-26-year-old niece.
On Aug. 31, the group ate barbecue and went for a hike before returning to the apartment, where the adults began drinking cocktails. Mabus was making the drinks, he testified on the stand.
After a few hours, Jane Doe had consumed about five drinks and became very intoxicated, retreating several times to the bathroom to vomit, she testified. Soon the group went to sleep, with the three teens sleeping in the living room, Mabus and Doe’s niece in the niece’s bedroom and Jane Doe remaining in the bathroom, where she claimed she lost consciousness.
Doe testified that she awoke in a pool of vomit in her nephew’s bed with Mabus penetrating her vagina from behind and whispering her name in her ear. She drifted in and out of consciousness and did not realize what happened until she woke up alone the next morning.
Guerrero, however, argued that Mabus awoke in the middle of the night to use the bathroom and encountered Jane Doe, who began kissing him. The two then went into a bedroom together, he said.
After initially denying to investigators that he and Doe had sex, Mabus admitted the activity on the stand but claimed it was consensual.
During testimony, Guerrero produced toxicology reports that didn’t show any drugs or alcohol in Doe’s system nor evidence of rape when she took a test two days later. Guerrero suggested Jane Doe alleged the rape because she was embarrassed she had sex with her niece’s boyfriend.