State Of Washington, Respondent V. Jesus Olivera, Jr., Appellant (Majority)
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FILED COURT OF APP AL I 2014 HAY - 6 6: 3 I STATE OF tVASHtNSTOU IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II No. 44746 -1 - II STATE OF WASHINGTON, Respondent, v. UNPUBLISHED OPINION JESUS OLIVERA, JR., Appellant. A jury found Jesus Olivera, Jr. guilty of first degree burglary and JOHANSON, A.C. J. fourth degree assault. Olivera appeals the burglary conviction, arguing that there was insufficient evidence to support a finding that he unlawfully entered the motel room with the intent to commit a Because sufficient evidence supports the first degree burglary crime. conviction, we affirm. FACTS In late 2012, Jon Ellison traveled to Westport, Washington to spend the Christmas his holiday with Jon Angela and sister' s family. rented rooms s' daughter, joined him in Westport. Both motel. Jon' s room was at the building' s far left Angela Ellison, Jon' from The Islander end of one wing and Angela' s room was two doors down. There were no other motel patrons in 1 The first names of Jon and Angela Ellison are used for purposes of clarity. No. 44746 -1 - II during that wing Jon left home. immediately Jon and around and woke Angela' s 8: 30 PM up at Jon and Angela spent Christmas Eve at Jon' s sister' s stay. and returned to his motel approximately 3: 00 AM. room. Jon went to bed almost Jon had trouble going back to sleep; he tossed and turned for approximately 45 minutes until he heard a vehicle with a muffler problem pull into the parking lot. Jon of bed and was concerned the idling vehicle outside began to pass the television Report room." by of stand when his the Proceedings ( RP) ( March 5, 2013) room at nearly 4: 00 AM. He got out motel door " came flying through the at 19. Jon saw a dark silhouette in the doorway. The person, later identified as Olivera, advanced further into the room until he was approximately eight or nine advance. Fearing for his life, struggled down the serious laceration. Olivera said feet away from Jon. Jon approached Olivera said nothing as he continued to Olivera and they began to wrestle. The two men hallway. Jon and Olivera fell, Olivera bit Jon' s left eyebrow, causing a Jon recounts that Olivera " kept on hollering [ that] he drew blood" and that that " he drew blood honor." RP ( March 5, 2013) at 22. Olivera then left the room and wandered in the parking lot while Jon called 911. After arriving, Westport Police Officer Steve Davidson located and arrested Olivera. As he placed Olivera in handcuffs, Officer Davidson asked Olivera whether he had anything on him that could cause an injury. Olivera blurted out that he had taken a lot of meth. Olivera testified that as he drove near the jetty that morning, he heard screams for help. As he looped Islander' s around parking lot the jetty' s and walked end, Olivera heard up to Jon' additional s motel room door. screams. He stopped in The Olivera again heard cries for help and thought the cries came from Jon' s room. Olivera did not knock on the door or summon the night manager. Rather, Olivera kicked in the door to see what was going on. Olivera claims 2 No. 44746 -1 - II Jon attacked during the him immediately struggle and after Olivera entering. was afraid Olivera bit Jon because Jon had Olivera' s sleeves that Jon was going to hit him. Both Jon and Angela denied hearing calls for help. The State charged found Olivera guilty Olivera with on each charge. first degree burglary and fourth degree A jury assault. 2 Olivera appeals his burglary conviction. ANALYSIS Olivera argues that the State failed to prove that Olivera unlawfully entered or remained in the motel room with a crime cannot the intent to Olivera contends that the intent to commit commit a crime. be inferred from the circumstances based on the facts elicited at trial. Because sufficient evidence supports a finding that Olivera entered or remained unlawfully in the motel room with the intent to commit a crime, we affirm Olivera' s conviction for first degree burglary. I. STANDARD OF REVIEW To determine whether evidence is sufficient to sustain a conviction, we review the evidence in the light 282 ( 2003). The most favorable to the State. relevant question essential elements of the crime is "` beyond State v. Wentz, 149 Wn.2d 342, 347, 68 P. 3d whether any rational fact finder could have found the a reasonable doubt. "' State v. Drum, 168 Wn.2d 23, 34- 35, 225 P. 3d 237 ( 2010) ( quoting Wentz, 149 Wn.2d at 347). In claiming insufficient evidence, the defendant necessarily admits the truth of the State' s evidence and all reasonable inferences that can be drawn from it. Drum, 168 Wn.2d at 35 ( citing State v. Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992)). v. 2 Hernandez, 172 Wn. We interpret the App. evidence "` most strongly against the defendant. ' State 537, 543, 290 P. 3d 1052 ( 2012) ( internal quotation marks omitted) Olivera does not challenge his fourth degree assault conviction. 3 No. 44746 -1 - II quoting State 1022 ( 2013). v. Joy, 121 Wn.2d 333, 339, 851 P. 2d 654 ( 1993)), review denied, 177 Wn.2d We consider both circumstantial and direct evidence as equally reliable and defer to the trier of fact on issues of conflicting testimony, witness credibility, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874 -75, 83 P. 3d 970 ( 2004). II. DISCUSSION The crime of first degree burglary is codified by RCW 9A. 52. 020( 1), which provides, A person is guilty of burglary in the first degree if, with intent to commit a crime against a person or property therein, he or she enters or remains unlawfully in a building and if, in entering or while in the building or in immediate flight therefrom, the actor or another participant in the crime ( a) is armed with a deadly weapon, or ( b) assaults any person. The State must therefore unlawfully in Jon' to commit prove beyond s motel room, ( a crime, and ( 3) a reasonable doubt that ( 1) Olivera entered or remained 2) Olivera entered or remained in the hotel room with the intent Olivera was either armed with a deadly weapon or that Olivera assaulted a person. To clarify proof of the second element, the legislature adopted the following inference of intent: In any prosecution for burglary, any person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein, unless such entering or remaining shall be explained by evidence satisfactory to the trier of fact to have been made without such criminal intent. RCW 9A. 52. 040. A jury can properly infer intent as long as the instruction they are given indicates that the inference is merely permissive instead 3 of mandatory. Here, the jury was instructed as follows: 3 Mandatory presumptions create problems of constitutional scope because of their potential for circumventing the State' s burden to prove all elements Brunson, 128 Wn.2d 98, 105, 905 P. 2d 346 ( 1995). 4 beyond a reasonable doubt. State v. No. 44746 -1 - II A person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein. This inference is not binding upon you and it is for you to determine what weight, if any, such inference is to be given. Clerk' Papers s at The instruction here clearly indicated that the inference is not mandatory. 47. Therefore, if the jury determined that Olivera entered or remained in the motel room unlawfully, they properly could infer that he did so with the intent to 4 commit a crime therein. But an inference should not arise where there exist other reasonable conclusions that would follow from the circumstances. State v. Jackson, 112 Wn.2d 867, 876, 774 P. 2d 1211 ( 1989). A person " enters or remains unlawfully" in or .upon premises when he or she is not then licensed, invited, Olivera entered December 25, guest at or otherwise privileged Jon' s neither The Islander. motel Jon nor room to enter so unlawfully. Angela had or remain. RCW 9A.52. 010( 5). Here, Before the altercation on the morning of ever met Olivera. Olivera was not registered as a Consequently, Olivera was not licensed, invited, or otherwise privileged to enter or remain in Jon' s room. Despite Olivera' s contention that he responded to requests for help coming from Jon' s room, he presented no corroborating evidence. The State' s evidence, which we interpret strongly against the influence defendant, Drum, 168 Wn.2d of methamphetamine when at 35, demonstrates that Olivera was under the he kicked in the door to Jon' s motel room. Olivera 4 When a permissive inference is only part of the State' s proof supporting an element and not the sole and sufficient" proof of that element, due process is not offended if the prosecution shows that the inference " more likely than not flows from the proven fact." State v. Deal, 128 Wn.2d But when the inference is the only proof of intent to commit a crime, the State must prove that the intent flowed beyond a reasonable doubt from any proven fact. Brunson, 128 Wn.2d at 110. Here, neither party advances an argument as to which 693, 699 -700, 911 P. 2d 996 ( 1996). standard should apply, but it appears as though the inference is the only proof of intent, so we assume the State must prove intent beyond a reasonable doubt. 5 No. 44746 -1 - II unlawfully entered the motel room and assaulted Jon, exclaiming that " he drew blood honor." RP ( March 5, 2013) at 22. Olivera did not knock on the door before kicking it in, he did not seek out the manager, and, once inside the room, he did not ask Jon whether there was a problem or whether he was screaming for help. Moreover, neither Jon, who was awake approximately 40 minutes before Olivera' s arrival, nor Angela heard anyone calling for help. When faced with conflicting testimony, the jury had the opportunity to judge the credibility of witnesses. It determined that Olivera' s version of the events was not believable. An essential function of the fact finder is to discount theories which it determines unreasonable because the finder of fact is the sole and exclusive judge of the evidence, the weight to be given thereto, and the credibility of witnesses. State v. Bencivenga, 137 Wn.2d 703, 709, 974 P. 2d 832 The inference that Olivera intended to commit a crime arose properly because there was 1999). no other reasonable conclusion following from the circumstances. Jackson, 112 Wn.2d at 876. Our role as the reviewing court " is not to reweigh the evidence and substitute our judgment for that of the jury." State v. Notaro, 161 Wn. App. 654, 671, 255 P. 3d 774 ( 2011). Nile jury is permitted to infer from one fact the existence of another Moreover, ' essential quoting to guilt, Tot v. if reason and experience support the inference. "' Jackson, 112 Wn.2d at 875 United States, 319 U. S. 463, 467, 63 S. Ct. 1241, 87 L. Ed. 1519 ( 1943)). Here, the jury was instructed that it may infer that Olivera intended to commit a crime when he kicked in the motel room entered the room door under the influence and advanced of methamphetamine at toward Jon, prompting Jon' s nearly 4: 00 AM. Olivera self defense. - Olivera attempted then assaulted Jon in the ensuing struggle. Viewing the evidence in a light most favorable to the State, a rational trier of fact could have found the essential elements of the first degree burglary 6 No. 44746 -1 - II beyond a reasonable Olivera' s doubt. Drum, 168 Wn.2d at 34 -35. The evidence was sufficient to support 5 conviction. We affirm. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. We concur: 5 Although State v. Sandoval is somewhat similar factually, it is distinguishable because it involved a due process challenge to a jury instruction which requires de novo review on appeal. 123 Wn. App. 1, 4, 94 P. 3d 323 ( 2004). Here, Olivera challenges the sufficiency of the State' s evidence which requires us to consider the evidence in a light most favorable to the prosecution. Wentz, 149 Wn.2d at 347. 7
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