Opinion
No. 21832-5-III.
Filed: February 19, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Benton County. Docket No: 02-1-00543-1. Judgment or order under review. Date filed: 01/24/2003. Judge signing: Hon. Dennis D. Yule.
Counsel for Appellant(s), Sharon Marie Brown, Attorney at Law, PO Box 4056, Pasco, WA 99302-4056.
Counsel for Respondent(s), Terry Jay Bloor, Attorney at Law, 7122 W Okanogan Pl Box G, Kennewick, WA 99336.
A jury frequently infers intent despite conflicting evidence. Here, a jury found that Clinton Roberts intended to commit a crime at another's home. He claimed he was at that home legitimately. And the jury convicted him of first degree burglary. We affirm that conviction.
FACTS
At nine o'clock on the evening of April 30, 2002, Karie Ehlers met with her estranged husband, Richard Ehlers, to discuss their joint tax return. The Ehlerses had been separated for several months. Mr. Ehlers was living in a motor home at a mobile home park in Kennewick.
Ms. Ehlers was dating Clinton Roberts. Ms. Ehlers was late to meet Mr. Roberts that evening. He went to Mr. Ehlers's residence. When he arrived Ms. Ehlers was fully dressed and sitting in a swivel chair across from Mr. Ehlers. Mr. Ehlers had started to get ready for bed. He was reclining on the couch in his underwear, covered by a blanket. The parties disagree as to what occurred next, by then 11:30 p.m. But the men ended up sparring in the yard. Ms. Ehlers called 911.
Mr. Ehlers claims that the door flew open and Mr. Roberts angrily shouted accusations that he and Ms. Ehlers were sleeping with each other. He says that Mr. Roberts reached past the roll-up curtain inside the motor home and leaned in with his arm against the counter. At trial, Ms. Ehlers testified that she never saw Mr. Roberts inside the motor home or on the steps. She said that a person could not touch the counter from the doorway as Mr. Ehlers claimed. Mr. Roberts also claimed that he had no part of his body inside the motor home. He swore that he was never even on the stairs. However, in her statement to the 911 operator, Ms. Ehlers stated that Mr. Roberts came into the motor home. And she told police the same thing.
According to Mr. Ehlers, he asked Mr. Roberts to leave. Mr. Roberts continued to yell. Mr. Ehlers then climbed out from under the blanket, pulled on his pants, and went to the door as Mr. Roberts backed out. He says that Mr. Roberts pushed him when they were outside and then kicked him in the groin. All the parties generally agree that there was a physical altercation between the men. Mr. Roberts claimed that the fight started when Mr. Ehlers pushed him. And Mr. Ehlers attempted to restrain Mr. Roberts until police arrived. But Mr. Roberts got away and left in his truck before police arrived. Ms. Ehlers told police that her husband pushed Mr. Roberts out the door, and then Mr. Roberts kicked him and punched him in the face until his nose bled. This is consistent with what she told the 911 operator — Mr. Roberts had started the fight.
Police caught up with Mr. Roberts at his residence by four o'clock the next morning and arrested him. He told the officer that he opened Mr. Ehlers's front door without invitation. But Mr. Ehlers pushed him out before he could enter.
The State charged Mr. Roberts with attempted residential burglary. He brought a motion to dismiss, arguing that the State would be unable to show any intent to commit a crime when he entered the residence. The judge ruled that intent was for the jury to decide, noting, `I certainly think they could infer that he was going in to pick a fight.' Report of Proceedings (RP) (Aug. 16, 2002) at 9. Mr. Roberts was then charged by amended information with first degree burglary.
Just before trial, the prosecutor told defense counsel that the State had received the 911 recording from Ms. Ehlers's call. Defense counsel objected to its untimely disclosure and argued that the tape should be excluded because it contained irrelevant statements indicating Mr. Roberts had a bad temper, that he had pushed Ms. Ehlers around before, and that she wanted a restraining order against him. The court ordered that the objectionable statements be redacted and told the parties to advise him in advance if there were issues regarding foundation for the admission of the tape as an excited utterance.
At trial the tape was played without objection as redacted. Ms. Ehlers claimed on cross-examination that she had never felt threatened by Mr. Roberts. So the trial court allowed the State to impeach that testimony on redirect with her statement on the 911 tape indicating that she wanted a restraining order against Mr. Roberts.
The defense moved to dismiss after the State's case-in-chief, arguing that there was insufficient evidence of intent. The trial judge denied the motion.
A jury found Mr. Roberts guilty of one count of first degree burglary. He moved for arrest of judgment and a new trial, again contending that there was insufficient evidence to show intent. The trial court again denied the motion.
The court ordered an exceptional sentence of 90 days imprisonment (which converted to work crew), well below the standard range of 15 to 20 months. This appeal follows.
DISCUSSION Sufficiency of Evidence
A defendant may challenge the sufficiency of the evidence at several stages of the prosecution: before trial, at the end of the State's case-in-chief, at the end of the evidence, after the verdict, and on appeal. State v. Jackson, 82 Wn. App. 594, 607-08, 918 P.2d 945 (1996). We view the evidence in the light most favorable to the State to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (emphasis omitted) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). The elements of the crime may be established by either direct or circumstantial evidence. State v. Thompson, 88 Wn.2d 13, 16, 558 P.2d 202 (1977). We accord circumstantial and direct evidence the same value. See State v. Bencivenga, 137 Wn.2d 703, 711, 974 P.2d 832 (1999). A challenge to the sufficiency of evidence admits the truth of the State's evidence and all reasonable inferences from it. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
The form of first degree burglary charged here requires an unlawful entry with intent to commit a crime therein and an assault while entering the building or in immediate flight from the building. RCW 9A.52.020(1)(b).
`Entry' includes `the entrance of [any] person, or the insertion of any part of [the] body, or any instrument or weapon held in [the] hand and used or intended to be used to threaten or intimidate a person or to detach or remove property.' RCW 9A.52.010(2). Ms. Ehlers told the 911 operator and police that Mr. Roberts entered the motor home. Mr. Ehlers also said Mr. Roberts entered. The evidence taken in the light most favorable to the State then supports a finding that Mr. Roberts entered Mr. Ehlers's residence without his permission.
The intent required for burglary is an intent to commit any crime inside the burglarized premises. State v. Bergeron, 105 Wn.2d 1, 4, 711 P.2d 1000 (1985). Intent to commit a crime may be inferred when a person enters or remains unlawfully. RCW 9A.52.040. When the jury is permitted to find an element of the offense based solely on the inference, the presumed fact must flow `more likely than not' from the proof of the basic fact. State v. Randhawa, 133 Wn.2d 67, 76, 941 P.2d 661 (1997).
Mr. Roberts's intent to commit a crime in the residence may be rationally inferred from the following evidence. He entered late at night and unlawfully. He was belligerent and confrontational toward both Mr. Ehlers and Ms. Ehlers. He assaulted Mr. Ehlers. And he fled the scene before police arrived. Mr. Roberts intended more than a social call when he burst into Mr. Ehlers's residence, yelled accusations, and started a fight. RP at 69, 71-72. See Bergeron, 105 Wn.2d at 11.
Again, we review the facts in this record in the light most favorable to the State. Mr. Roberts's conflicting version is not part of this formula.
Mr. Roberts relies on State v. Jackson for the proposition that an inference does not follow if there are other reasonable conclusions that would follow from the circumstances. State v. Jackson, 112 Wn.2d 867, 876, 774 P.2d 1211 (1989). But the Washington State Supreme Court `did not hold in Jackson that the fact finder would be precluded from determining what is `reasonable." State v. Bencivenga, 137 Wn.2d 703, 708, 974 P.2d 832 (1999). Rather, it held that it was for the jury to determine the reasonableness of the inference to be drawn from the evidence. It noted: Just because there are hypothetically rational alternative conclusions to be drawn from the proven facts, the fact finder is not lawfully barred against discarding one possible inference when it concludes such inference unreasonable under the circumstances. Nothing forbids a jury, or a judge, from logically inferring intent from proven facts, so long as it is satisfied the state has proved that intent beyond a reasonable doubt.
Id. at 708-09. Here, the jury believed that Mr. Roberts burst into the motor home in a jealous rage. Intent to assault can be logically inferred from these facts.
The conviction is supported by substantial evidence.
Admission of Recording
The only objections Mr. Roberts made to the 911 tape at trial were to the State's late disclosure and to the tape's relevancy. The court then made arrangements for the defense to listen to the tape prior to trial and redact portions. Mr. Roberts now claims that at the time of trial, he objected to the admission of the tape on the bases of `foundation, purpose and hearsay.' Appellant's Br. at 34. But this record reflects no such objection. See State v. Wixon, 30 Wn. App. 63, 78, 631 P.2d 1033 (1981) (where record indicated counsel objected to testimony on relevancy grounds and no hearsay objection was made, no hearsay objection was preserved for appeal).
In general, we will not review errors of an unpreserved issue unless it is of constitutional magnitude. State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995). Hearsay objections generally do not rise to the level of constitutional error. State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981). An issue of constitutional magnitude is presented if it relates to a defendant's right to confront witnesses. See State v. Koepke, 47 Wn. App. 897, 911, 738 P.2d 295 (1987). Here, the hearsay declarant and the witness were available witnesses and subject to cross-examination. There is then no issue of constitutional magnitude. State v. Leavitt, 111 Wn.2d 66, 71, 758 P.2d 982 (1988); State v. Quigg, 72 Wn. App. 828, 834, 866 P.2d 655 (1994). Ms. Ehlers was available for cross-examination. Mr. Roberts complains that the voices of other persons can be heard on the recording played for the jury. But he does not say how these `statements' were prejudicial. Indeed, there were no `statements' at all, nor were these miscellaneous `statements' used to prove the truth of the matter asserted, so they were not hearsay in any event.
Mr. Roberts generally argues that the tape was improperly admitted pursuant to the excited utterance exception to the hearsay rule. A trial court's decision to admit hearsay statements as excited utterances will only be overturned for an abuse of discretion. State v. Woods, 143 Wn.2d 561, 595, 23 P.3d 1046 (2001). Discretion is abused if it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
The hearsay rule generally excludes out-of-court statements offered to prove the truth of the matter asserted. ER 801(c); ER 802. Such statements, however, may be admitted if they are excited utterances. ER 803(a)(2). A statement is properly admitted under the hearsay exception, when it satisfies the following requirements: (1) a startling event or condition must have occurred, (2) the statement must have been made while the declarant was under the stress of the excitement caused by the event or condition, and (3) the statement must have been made in relation to the startling event or condition. State v. Chapin, 118 Wn.2d 681, 686, 826 P.2d 194 (1992).
Here, Ms. Ehlers was witnessing a fight between her estranged husband and new boyfriend when her statements were made. The statement was made while the fight was still occurring. And she was calling to report the fight and was in fact describing the events as they were occurring. The statements made by Ms. Ehlers fall well within the excited utterance exception to the hearsay rule. Even if the issue was preserved for appeal, the 911 recording was properly admitted evidence.
We affirm the conviction.
A majority of the panel has determined that 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.
BROWN, C.J. and SCHULTHEIS, J., concur.