Opinion
No. 22836-3-III
Filed: March 17, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No. 03-1-00049-4. Judgment or order under review. Date filed: 03/15/2004. Judge signing: Hon. Tari S. Eitzen.
Counsel for Appellant(s), Carol A. Elewski, Attorney at Law, PO Box 823, East Olympia, WA 98540-0823.
Counsel for Respondent(s), Frank Alan Grigaliunas, Spokane County Prose Atty Office, 1100 W Mallon Ave, Spokane, WA 99260-0270.
Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Kevin Mark Henson appeals his conviction for first degree burglary. He contends the evidence was insufficient to support the conviction. In his statement of additional grounds for review, he also contends he received an exceptional sentence in violation of Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). We affirm.
On October 27, 2002, Dirk Maravilla and his family returned from church and found Mr. Henson inside their home. Mr. Henson headed to the back door and tried to leave, but a child safety lock prevented him from opening the door. When Mr. Maravilla grabbed him to keep him from leaving, Mr. Henson turned around and tried to hit Mr. Maravilla, who then put Mr. Henson in a headlock. But he struggled free. Mr. Henson wrestled Mr. Maravilla to the ground and tried to bite him. He also tried to grab Mr. Maravilla's genitals, as well as the inside of his leg. At some point during this struggle, Ms. Maravilla entered the home and called 911. The police arrived, whereupon Mr. Henson was arrested.
Mr. Henson was charged with first degree burglary predicated on an assault upon Mr. Maravilla and attempted second degree theft. The jury convicted Mr. Henson of both charges. The trial court sentenced him to 116 months' confinement and 18 to 36 months' community custody for the first degree burglary conviction and 365 days' confinement for the attempted theft conviction. He appeals only the first degree burglary conviction.
Mr. Henson contends the evidence was insufficient to convict him of first degree burglary. In reviewing a sufficiency of the evidence challenge, the test is whether, after viewing the evidence in a light most favorable to the State, 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, 220-21, 616 P.2d 628 (1980). All reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). It is the role of the trier of fact, not the appellate court, to resolve conflicts in the testimony and to evaluate the credibility of witnesses and the persuasiveness of evidence. State v. Carver, 113 Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d 306 (1989).
A person commits first degree burglary `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 . . . [he or she] . . . assaults any person.' RCW 9A.52.020. Mr. Henson does not dispute that he unlawfully entered Mr. Maravilla's residence. Rather, he claims that he did not assault anyone.
`An assault is an intentional touching or striking of another person that is harmful or offensive. . . . A touching or striking . . . is offensive . . . if [it] . . . would offend an ordinary person who is not unduly sensitive.' 11 Washington Pattern Jury Instructions: Criminal sec. 35.50, at 453 (2d ed. 1994).
At trial, Mr. Maravilla testified that when he first grabbed him, Mr. Henson pushed off and tried to hit back. During the struggle, he tried to grab the inside of Mr. Maravilla's legs and his genitals. Mr. Henson grabbed up his legs and pinched him. Viewed in a light most favorable to the State, this evidence was sufficient for a rational juror to find beyond a reasonable doubt that Mr. Henson committed an assault while he was unlawfully in Mr. Maravilla's home. Because he does not dispute that he unlawfully entered the residence, the jury had sufficient evidence to convict Mr. Henson of first degree burglary.
In his statement of additional grounds for review, Mr. Henson also contends he was given an exceptional sentence when the court imposed 18 to 36 months' community custody and his rights were thereby violated when the jury did not participate in his sentencing pursuant to Blakely, 124 S. Ct. at 2531.
In Blakely, the United States Supreme Court held that, except for the existence of a prior conviction, any fact that increases the penalty for a crime must be admitted by the defendant or submitted to a jury and proved beyond a reasonable doubt. Blakely, 124 S. Ct. at 2536 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)). The addition of community placement, however, is not an exceptional sentence as defined in RCW 9.94A.535. In re Pers. Restraint of Caudle, 71 Wn. App. 679, 680, 863 P.2d 570 (1993).
The standard range for Mr. Henson's first degree burglary offense based on an offender score of nine or more was 87-116 months. RCW 9.94A.510. His offender score was 20. Mr. Henson received a standard range sentence and Blakely is inapplicable.
Affirmed.
A majority of the panel has determined 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.
SCHULTHEIS, J. and KURTZ, J., Concur.