Opinion
66920-6-I
12-10-2012
STATE OF WASHINGTON, Respondent, v. TROY DION HARDIN, Defendant, and MIHAI ROMULUS MIHALCE, and each of them, Appellant.
UNPUBLISHED OPINION
Grosse, J.
Entering or remaining unlawfully in a building with the intent to commit a crime against a person or property therein is sufficient to support a burglary conviction. Here, the fact that the defendant was previously invited to stay overnight in a hotel room is insufficient to establish a legal right to be there, particularly when there was evidence he was asked to leave.
Nor is there any merit to the defendant's argument that the jury was improperly instructed. A first-aggressor instruction is appropriate where there is conflicting evidence as to whether the defendant's conduct precipitated the fight. There was credible evidence from which a jury could reasonably conclude that the defendant provoked the need to act in self-defense. We affirm the judgment and sentence.
FACTS
Tammy Keyser's father died shortly after she returned from visiting him in hospice in Oregon. Distraught, she told her friend, Donald Long, that she needed time away from everyone. On February 5, 2010, Long took Keyser to the Red Lion Hotel in Bellevue and booked her a room in his name, paying cash. Long continued to rent the room day by day, paying cash, up until the incident. Keyser had the key card to the room.
While Keyser was in the room, various people visited her, including her boyfriend, Mihai Mihalce. Prior to the incident on February 12, 2010, Mihalce had stayed overnight in the room with Keyser. On the morning of the incident, Keyser asked Mihalce to leave. Mihalce left.
Mihalce returned later in the day with Troy Hardin. Long went to the door, looked through the peephole and told Keyser it was Mihalce. Keyser went to the door and Long heard a loud conversation at the door. Testimony was disputed as to the manner in which Mihalce entered the room. Long said he heard the door open up with a "swoosh." Keyser testified that she let Mihalce in. Another friend visiting Keyser, Dennis Tomlinson, asserted that Mihalce and Hardin pushed their way in. Mihalce testified that Keyser let him in.
A fight broke out between Tomlinson and Mihalce. Tomlinson was stabbed by Hardin and Mihalce beat him about the head and arms with a hose with brass fittings. Tomlinson suffered extensive injuries.
A guest at the hotel called the front desk to report noises emanating from Keyser's room. Long ran to the front desk and frantically directed them to call 911 because "they were beating her with a pipe." Long then ran to his car to retrieve an axe handle. Responding to the call, police officers stopped Long running toward the hotel with the axe handle. Long asserted that a female was being attacked and pointed to the second floor of the hotel. Police heard breaking glass and observed Keyser on the second floor of the hotel yelling for help. Keyser came down to open the outside door for the police. Police found Tomlinson bleeding. Keyser told the police that "Mihai and some black guy" had attacked Tomlinson and pointed in the direction they had gone. Officers spotted Mihalce and Hardin walking in the parking lot. The officers requested the men to stop. Hardin complied, but Mihalce sped around the corner of the hotel. Police caught up with Mihalce and detained him near his car.
Mihalce told officers that Tomlinson had attacked him. Police noticed that Mihalce had a split lip but did not notice other injuries. Mihalce was taken to the hospital, treated, and released the same night. Paramedics transported Tomlinson to the hospital. He had a stab wound to his right hip, and lacerations on his face, head, neck, and arms.
Tomlinson testified that he and Keyser used drugs in the morning and that they had a romantic encounter. When Mihalce knocked on the door, Tomlinson testified that Keyser was frantic and that Mihalce and Hardin pushed their way into the room. Mihalce was yelling, "[A]re you F'ing my girlfriend?" Mihalce began beating Tomlinson with a hose with brass fittings. According to
Tomlinson, Mihalce stated that he would "do seven years for this." Tomlinson was able to push Mihalce off and get on top of him. Mihalce told Hardin to "get him off me" and "kill that motherfucker." Hardin then stabbed Tomlinson who managed to stumble outside the room. He saw Mihalce had Keyser pinned down on the bed. Tomlinson grabbed a picture from the wall and hit Mihalce with it.
At trial, Keyser testified that she was Mihalce's girlfriend and that he had stayed at her hotel room for several nights. Keyser admitted arguing with Mihalce and asking him to leave earlier in the day. Keyser denied doing any drugs and did not remember Mihalce striking her. Keyser stated that she had a panic attack and could not focus on what was happening.
During cross-examination, the State played a tape of a conversation Mihalce had with Vernon Thompson two hours before the incident. Thompson, an inmate, called Mihalce from the King County Jail. On the recording of that conversation, Mihalce is heard complaining vigorously about the fact that Keyser had asked him to leave earlier in the day.
The jury found Mihalce guilty of first degree burglary and second degree assault with deadly weapon enhancements. Mihalce appeals arguing that there was insufficient evidence to support the first degree burglary conviction and that the court erred in giving a first-aggressor jury instruction.
ANALYSIS
Burglary Conviction
Evidence is sufficient to support a conviction if, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found a defendant guilty beyond a reasonable doubt. "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." "Credibility determinations are for the trier of fact and are not subject to review." We must defer to the jury on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. A factual sufficiency review "does not require the reviewing court to determine whether it believes the evidence at trial established guilt beyond a reasonable doubt but rather whether any rational trier of fact could be so convinced."
State v. Tilton, 149 Wn.2d 775, 786, 72 P.3d 735 (2003).
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004).
Thomas, 150 Wn.2d at 874-75.
State v. Smith, 31 Wn.App. 226, 228, 640 P.2d 25 (1982) (emphasis omitted).
Mihalce was charged with first degree burglary under RCW 9A.52.020(1), which provides in pertinent part:
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 . . . (b) assaults any person.
Mihalce argues that he was staying with his girlfriend and had a legal right to be on the premises. Mihalce cites State v. Wilson to support his legal status. But the facts in Wilson are markedly different from those here. Gregory Wilson was a co-signer on the lease, the assault victim stated that Wilson lived there, and a prior no-contact order did not prohibit Wilson's presence at the residence. Here, Mihalce neither lived there, nor paid for the hotel room. When asked why Mihalce did not have a key to the room, Keyser responded, "[b]ecause it's my room." It is undisputed that Mihalce was asked to leave earlier in the day.
136 Wn.App. 596, 150 P.3d 144 (2007).
Wilson, 136 Wn.App. at 612.
Diane Foust arrived with her husband and heard Keyser yelling, "stop it" and "get out." Foust and her husband managed to break up the fight. Mihalce left the room but returned again. There was sufficient evidence for the jury to find that Mihalce forced his way into the hotel room. Mihalce relies on his testimony and Keyser's to support his version that he was invited into the room. The credibility of witnesses is within the purview of the fact finder. Mihalce did not have permission to be in the room and remained despite being asked to leave. The evidence was sufficient to establish that Mihalce forced his way into the room and assaulted Tomlinson.
Assault Conviction
Mihalce next contends that the trial court committed reversible error by giving the State's proposed first-aggressor instruction over defense counsel's objection. He argues that the court's giving that instruction deprived him of the right to argue his theory of the case.
Jury instructions are sufficient if they correctly state the law, are not misleading, and permit the parties to argue their respective theories of the case.A court may give an aggressor instruction if there is credible evidence from which a jury could reasonably determine that the defendant provoked the need to act in self-defense. Mihalce's theory of the case was that the victim was the aggressor and that Mihalce's use of the weapon was appropriate. He testified on his own behalf and his counsel argued that point to the jury in closing. An aggressor instruction does not prevent a defendant from arguing self-defense.And the aggressor instruction did not prevent it in the present case. As noted in State v. Riley, a first-aggressor instruction is appropriate if there is conflicting evidence as to whether the defendant's conduct precipitated a fight. Here, Mihalce's testimony conflicted with that of the victim and another witness. The credibility of witnesses lies within the purview of the fact finder and will not be revisited on appeal. Although not favored, an aggressor instruction is proper if there is credible evidence, even if disputed, "from which a jury can reasonably determine that the defendant provoked the need to act in self-defense." This was the case here.
State v. Teal, 152 Wn.2d 333, 339, 96 P.3d 974 (2004).
State v. Riley, 137 Wn.2d 904, 909-910, 976 P.2d 624 (1999).
Riley, 137 Wn.2d 904 at 908 n.1 (noting that an aggressor instruction did not deny the defendant the ability to argue self-defense where defendant's attorney asserted self-defense in the opening statement and closing argument and the court instructed the jury on self-defense).
137 Wn.2d 904, 910, 976 P.2d 624 (1999).
Thomas, 150 Wn.2d at 874-75.
Riley, 137 Wn.2d at 909.
The trial court is affirmed.
WE CONCUR: