¶47 (concurring) — I concur with the result, but not the reasoning of the majority. In my view the trial court in this case should have applied the Elmore standard before excusing juror 3 because the court’s reasons for dismissing the juror fall within the Elmore court’s limitation of the “reasonable possibility” standard to “the rare case where a juror is accused of engaging in nullification, refusing to deliberate, or refusing to follow the law.” State v. Elmore, 155 Wn.2d 758, 778, 123 P.3d 72 (2005).
¶48 Before dismissing juror 3, the court explained,
The court has strong reservations about the extent of the candor by Juror Number 3 as to the scope of the discussion about this case with her husband.... Juror Number 3 also was not following jury instruction number two, which is [WPIC 1.04 — Washington Practice: Washington Pattern Jury Instructions: Criminal], for each juror to decide the case for him[-] or herself, but only after considering the evidence impartially with fellow jurors. . . . Her husband told her to stick to her guns, and she made a commitment to him that she would. . . . Clearly, this juror is being influenced by a third party, her husband, and the good grounds have been shown for her excusal. . . . [T]his juror can no longer serve as an impartial juror, has failed to follow the instructions of the Court and has been improperly influenced by outside sources.
*863Verbatim Report of Videotape Recorded Proceedings (VRP) (July 18, 2005) at 13-14. Thus, contrary to the majority’s assertion, the court did not excuse juror 3 merely because she engaged in misconduct. Rather, the court excused juror 3 because she was refusing to deliberate impartially with other jurors as a result of her alleged commitment to her husband to acquit.
¶49 Although the trial court did not explicitly separate this reason from its initial concern of misconduct, it is evident that the court dismissed juror 3 because of its concern with jury nullification rather than for misconduct.4 Indeed, the court initially ruled that the juror’s misconduct (communicating with her husband) was not sufficient to dismiss the juror. VRP (July 15, 2005) at 29-30. In the end, the judge dismissed juror 3 because he believed her commitment to “stick to her guns” made her incapable of deliberating fairly. The judge reached this conclusion after learning that juror 3 was the lone holdout and that there would be a mistrial if he did not dismiss her. Id. at 49. Thus, the court excused juror 3 for engaging in nullification, for refusing to follow the law, and for refusing to deliberate. Because the court excused juror 3 for the reasons identified in Elmore, it should have applied Elmore's heightened evidentiary standard before dismissing juror 3.
¶50 The majority bases its refusal to apply Elmore to these facts on the erroneous premise that the court excused juror 3 simply because she engaged in misconduct by communicating with a third party. This premise would be correct if the court had excused the juror as soon as it learned of the misconduct. However, when the presiding juror first reported the misconduct, the court declined to *864excuse the juror and allowed the juror to continue deliberations. Id. at 29-30.
¶51 Soon after the court declined to dismiss juror 3, the jury reported that two jurors had scheduling conflicts that would prevent them from deliberating into the next week. Id. at 32. The State then renewed its motion to dismiss juror 3 and argued that, based on the prosecutor’s observations of the juror’s previous testimony, juror 3 had shut down and was not capable of deliberating. Id. at 33-34. The court then asked the presiding juror if there was a reasonable probability of reaching a unanimous verdict within a reasonable amount of time. Id. at 38. The presiding juror responded in the negative, and the other jurors concurred. Id.
¶52 At that point, the court recognized that nothing had changed since its first ruling and that the State wanted to dismiss juror 3 because she was the lone holdout. Id. at 34, 42. The court saw nothing wrong with the communication between juror 3 and her husband and declined to dismiss her:
[Her husband] didn’t give [juror 3] an opinion, he was basically saying if that’s what you believe, stick with what you believe, which is a form of moral support. He’s not telling her . . . don’t change your mind. He’s saying, if that’s what you believe, stick with it.
Id. at 43. Before the judge changed his mind and his ruling on Monday morning, he had gathered no new information, except that both alternate jurors were available and remained impartial. VBP (July 18, 2005) at 2-10.
¶53 Examination of the record reveals that the court’s main concern with allowing juror 3 to remain on the jury was the possibility of a mistrial. After the State renewed its motion to dismiss juror 3, the judge stated that he would have to declare a mistrial if he did not dismiss juror 3. VRP (July 15, 2005) at 49. The judge went on to say that he would have to determine whether there was an available alternate before he could dismiss juror 3 because there *865would be a mistrial if he dismissed the juror without someone to replace her. Id. at 54.
¶54 Despite the trial court’s stated reasons for dismissing juror 3, the majority narrowly focuses on the initial complaint that the juror engaged in third party communication. The majority then distinguishes this case from Elmore because investigation of misconduct based on third party communications does not require an inquiry into the jury’s deliberations and does not present the concerns discussed in Elmore. The majority reasons that a court’s investigation into allegations of misconduct rarely reveal that the challenged juror is the lone holdout and that this rare instance when misconduct and jury nullification intersect does not justify extending Elmore.
¶55 Certainly, many cases where a juror is accused of improper third party communication during deliberations do not present the concerns in Elmore, and such allegations usually do not require the trial court to question the jurors about deliberations. Indeed, the trial court here likely could have avoided knowledge of the juror’s holdout status by instructing her not to disclose the status or content of jury deliberations.
¶56 However, disclosure by juror 3 that she was the lone holdout unquestionably triggered Elmore’s concerns about protecting a defendant’s rights to an impartial jury and a unanimous verdict:
Dismissal of a holdout juror also risks violating the Sixth Amendment right to an impartial jury. If it appears that a trial court is reconstituting a jury in order to reach a particular result, then the right to an impartial jury is sacrificed. If a holdout juror is dismissed in a way that implies his dismissal stems from his views on the merits of the case, then the reconstituted jury may be left with the impression that the trial judge prefers a guilty verdict.
Thus, respect for these rights requires that where a trial court concludes that there is a reasonable possibility that the impetus for removal of a deliberating juror is disagreement with the juror’s view of the sufficiency of the evidence, the trial
*866court must send the jury back to deliberate with instructions that the jury continue to try to reach a verdict. Otherwise, the defendant is entitled to a mistrial.
Elmore, 155 Wn.2d at 772 (citations omitted). Because the dismissal of a holdout juror implicates these vital rights, this court should look to the trial court’s stated reasons for dismissing a juror to determine whether Elmore applies even when other misconduct may also be present.
¶57 Rather than applying Elmore, the majority creates a new standard:
[Wjhere the trial court has knowledge of a deliberating juror’s substantive opinion of the case, trial courts must make a determination regarding prejudice. Prejudice should be determined by concluding whether any misconduct committed by the juror has affected the juror’s ability to deliberate before deciding to excuse the juror under RCW 2.36.110. If the court decides that the juror can still deliberate fairly despite the misconduct, the court should not excuse the juror. Only if the misconduct reasonably would have altered the juror’s formulated opinion of the case can the court disturb the deliberations that led the juror to reach such a decision.
Majority at 857.
¶58 The majority’s new “prejudice” standard should be rejected for several reasons. First, it overlaps with and contradicts Elmore. It allows the trial court to dismiss a holdout juror for misconduct if the judge determines that the alleged misconduct has affected the juror’s ability to deliberate fairly. That is, in order to dismiss a holdout juror for misconduct, the misconduct must have so influenced the juror’s opinion of the case as to cause her to refuse to deliberate further, to refuse to consider the evidence, and to refuse to apply the law.5 Essentially, under the majority’s new standard, a holdout juror may be dismissed for misconduct only if the misconduct causes her to engage in nullification.
*867¶59 In contrast, under Elmore, in order for a trial court to dismiss a juror for allegations of engaging in nullification, refusal to follow the law, or refusal to deliberate, the trial court must first determine that there is no reasonable possibility the impetus for dismissal is the juror’s views on the sufficiency of the evidence. Only if there is no such reasonable possibility does the court have discretion to dismiss the juror.
¶60 The majority’s standard allows a trial court to dismiss a juror for engaging in nullification without first determining whether there is a reasonable possibility the true impetus for removal is the juror’s views on the evidence. The new standard ignores the possibility that the juror’s holdout status is a result of her assessment of the evidence, rather than the result of her misconduct. It thereby gives the trial court the discretion to reconstitute the jury to achieve a particular result, which the Elmore court sought to avoid. Elmore, 155 Wn.2d at 772.
¶61 In addition, the majority’s new standard is an end-run around Elmore’s protections of a defendant’s rights to an impartial jury and a unanimous jury verdict. In Elmore, this court reasoned:
In order to protect the defendant’s rights to an impartial jury and a unanimous jury verdict, once the evidence is gathered, the trial court must apply a heightened evidentiary standard[:] ... a deliberating juror may not be dismissed where there is any reasonable possibility that the impetus for dismissal is the juror’s views of the sufficiency of the evidence.
Id. at 781. In balancing these rights, the need for jury secrecy, and the need for a court to investigate allegations of nullification, the Elmore court adopted the “reasonable possibility” standard in order to err on the side of protecting a defendant’s rights. Id. at 777. The court reasoned, “any lower evidentiary standard could lead to improper dismissal of a juror based on his or her view of the sufficiency of the evidence.” Id. at 776. The court specifically declined to adopt the California Supreme Court’s standard, which
*868flip[s] the presumption, allowing dismissal if there is a demonstrable reality that the juror was acting improperly, rather than prohibiting dismissal if there is any reasonable possibility that the juror was acting properly.
Id. We noted that the “reasonable possibility” standard incorporates the presumption that jurors follow a trial court’s instructions,
in that it requires the court, where there is conflicting evidence, to retain a juror if there is any reasonable possibility that the dispute among the jury members stems from disagreement on the merits of the case.
Id. at 777-78.
¶62 The majority’s new standard fails to provide the same protections that Elmore provided because, like the California standard this court rejected in Elmore, it flips the presumption, allowing dismissal if the judge determines the juror’s alleged misconduct affected her ability to deliberate fairly, rather than prohibiting dismissal if there is any reasonable possibility the true impetus for dismissal is the juror’s view on the evidence. Instead of erring on the side of protecting defendant rights, the new standard errs on the side of preserving a court’s discretion to dismiss a juror for misconduct.
¶63 The majority’s standard allows a trial court the discretion to dismiss a holdout juror accused of nullification so long as the court couches its reasoning in terms of misconduct rather than nullification. Such an approach defeats this court’s efforts in Elmore to prevent a trial court judge from controlling the outcome of a case by dismissing a holdout juror based on the juror’s views of the evidence. Thus, the majority’s standard fails to adequately protect a defendant’s rights to an impartial jury and a unanimous jury verdict.
¶64 The majority worries that extending Elmore to this case unreasonably handicaps a trial judge’s discretion to dismiss jurors for misconduct. Similarly, the State argues that application of Elmore in this case means “no juror can *869ever be excused for unfitness, even for flagrant and egregious misconduct wholly unrelated to jury nullification, so long as he or she is voting for acquittal.” Br. of Resp’t at 16-17. However, application of Elmore to this case does not extend the standard any further than its original limitation to cases involving allegations of juror nullification, refusal to follow the law, or refusal to deliberate. Application of Elmore here merely requires the recognition that nullification by any other name elicits the same concerns with protecting defendant rights.
¶65 In any event, a juror’s holdout status does not absolutely prevent dismissal. After the trial court determines there is no reasonable possibility that the true impetus for dismissal is the juror’s views of the evidence, the trial court has the discretion to dismiss a holdout juror for misconduct. Elmore, 155 Wn.2d at 778. This approach does not unreasonably handicap a trial court’s discretion and is consistent with the Elmore court’s concerns with protecting a defendant’s rights to an impartial jury and a unanimous verdict.
¶66 For these reasons, I reject the majority’s standard and believe Elmore applies here.
C. Johnson, J.M. Johnson, and Stephens, JJ., concur with Madsen, J.This court defined jury nullification as
a juror’s “knowing and deliberate rejection of the evidence or refusal to apply the law ... because the result dictated by law is contrary to the [juror’s] sense of justice, morality, or fairness.”
Elmore, 155 Wn.2d at 761 n.l (alterations in original) (quoting Black’s Law Dictionary 875 (8th ed. 2004)).
Compare the Elmore court’s definition of nullification. Elmore, 155 Wn.2d at 761 n.1.