Opinion
No. 26709-1-III.
March 5, 2009.
Appeal from a judgment of the Superior Court for Grant County, No. 07-8-00136-9, Douglas G. Anderson, J. Pro Tem., entered December 17, 2007.
Affirmed in part and reversed in part by unpublished opinion per Sweeney, J., concurred in by Schultheis, C.J., and Kulik, J.
The defendant in this juvenile prosecution challenges the sufficiency of the evidence to support a number of the court's findings of fact. We agree that the evidence is insufficient to prove her age and, therefore, reverse the adjudication of guilt for minor in a public place exhibiting the effects of alcohol. We, however, affirm her adjudications of guilt for fourth degree assault and first degree criminal trespass.
FACTS
Deanna Quezada told her fiancé, Alfredo Covarrubias, that a man named Sergio had harassed her. Mr. Covarrubias got upset and wanted to beat up Sergio. So, around 11:00 p.m. on September 10, 2007, he drove Ms. Quezada and their friend, Juan Cervantes, to the home of Irene Ortiz to look for Sergio. Ms. Quezada had been drinking.
Ms. Quezada waited in the car while Mr. Covarrubias and Mr. Cervantes threw a rock and a two-by-four piece of wood through Ms. Ortiz's front window. They also threw another two-by-four through the back windows of Ms. Ortiz's van. Ms. Ortiz and her son, Ismael, were inside the house at the time. They came out and saw Mr. Covarrubias and Mr. Cervantes run across the yard to their car. Mr. Covarrubias, Mr. Cervantes, and Ms. Quezada yelled and cussed at the Ortizes. The three fled in the car as police arrived.
Mr. Covarrubias drove the car down an alley a few blocks away from the Ortiz home. He parked under Bessie Lynch's carport. All three passengers then abandoned the car and split up. Ms. Lynch was asleep when she heard someone enter her house through the back door. She woke up, got out of bed, and found Ms. Quezada in her kitchen. Ms. Quezada had urinated on herself and the kitchen floor. She asked Ms. Lynch to help her. Ms. Lynch refused and told Ms. Quezada to leave. She lifted the phone to call 911. Ms. Quezada begged her not to. The police then arrived in the alley behind Ms. Lynch's home. Ms. Lynch watched Ms. Quezada run out the back door into a neighbor's garden. Officer Clare Harden later "found Ms. Quezada hidden in the rose bushes." Report of Proceedings (RP) at 133.
Officer Harden arrested Ms. Quezada, handcuffed her, and put her in a patrol car where she vomited on herself. Corporal Annalisa Dobson approached Ms. Quezada, read her Miranda warnings and juvenile warnings, and then questioned her. Ms. Quezada cried and hyperventilated. Officers pulled Ms. Quezada out of the car. She slumped to the ground and passed out. Corporal Dobson called for an ambulance.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Paramedic Dustin Tyler treated Ms. Quezada. She cried and yelled at him. He tried to calm her down. She hit him in the arm. Officer Harden told Ms. Quezada not to hit Mr. Tyler. But she hit him again.
The State charged Ms. Quezada in juvenile court with: (1) malicious mischief, (2) third degree assault, (3) first degree criminal trespass or, alternatively, residential burglary, and (4) minor in possession of alcohol or, alternatively, minor in a public place exhibiting the effects of having consumed liquor.
The juvenile court held a fact-finding hearing. The court admitted the State's only exhibit, an uncertified copy of an incomplete marriage certificate for Mr. Covarrubias and Ms. Quezada. The certificate lists Ms. Quezada's date of birth as September 6, 1990. But the court admitted the document "only for purposes of showing the relationship between Ms. Quezada and [Mr. Covarrubias]." RP at 193. The court entered findings and conclusions and adjudicated Ms. Quezada guilty of fourth degree assault, first degree criminal trespass, and being a minor in a public place while exhibiting the effects of having consumed alcohol.
DISCUSSION
Standard of Review
We review a juvenile court's decision by determining whether substantial evidence supports challenged findings and whether the findings support the conclusions of law. State v. Carlson, 143 Wn. App. 507, 519, 178 P.3d 371 (2008); State v. B.J.S., 140 Wn. App. 91, 97, 169 P.3d 34 (2007). A challenge to the sufficiency of the State's evidence admits the truth of that evidence and all reasonable inferences therefrom. B.J.S., 140 Wn. App. at 97. We defer to the juvenile court commissioner on issues of conflicting testimony and the burden of persuasion. Id.
Sufficiency of the Evidence — Assault
Ms. Quezada first challenges her adjudication of guilt for fourth degree assault. She assigns error to finding of fact 24: "Striking Dustin Tyler, after having been told to stop by Officer Harden, was an intentional and offensive touching." Clerk's Papers (CP) at 60. Ms. Quezada contends that the record does not show that she touched Mr. Tyler, or, alternatively, that the touch was intentional or offensive. Ms. Quezada also challenges the conclusions drawn from the court's findings.
Fourth degree assault is any assault that does not amount to first, second, or third degree assault. RCW 9A.36.041(1). A person commits assault by intentionally touching another unlawfully. State v. Kindsvogel, 149 Wn.2d 477, 483, 69 P.3d 870 (2003). A touch is unlawful when it is neither consented to nor privileged and was either harmful or offensive. State v. Stevens, 127 Wn. App. 269, 277, 110 P.3d 1179 (2005), aff'd, 158 Wn.2d 304, 143 P.3d 817 (2006).
Unchallenged finding of fact 23 states:
Paramedic Dustin Tyler was speaking to Ms. Quezada in an effort to calm her down and to stop her hyperventilating. Ms. Quezada's response was to yell at him, and swat at him with her right hand to get him away from her. According to Officer Harden, Ms. Quezada hit Dustin Tyler twice in the right arm. Officer Harden then told [Ms. Quezada] to stop, to which Ms. Quezada replied that she wanted everyone to leave her alone, and that she wanted to go home to her baby. Ms. Quezada then hit Dustin Tyler at least once more after being told to stop.
CP at 60.
Finding of fact 23 supports the conclusion that Ms. Quezada intended to and did hit Mr. Tyler. "A person acts . . . intentionally when [s]he acts with the objective or purpose to accomplish a result which constitutes a crime." RCW 9A.08.010(1)(a). We can infer specific criminal intent from circumstantial evidence, here Ms. Quezada's conduct. State v. Bryant, 89 Wn. App. 857, 870-71, 950 P.2d 1004 (1998).
Ms. Quezada claims that she was too drunk to intend an assault. She asks us to consider her level of intoxication when determining whether the State produced evidence that she acted intentionally. But her level of intoxication and any influence on the intent element of assault was for the trier of fact. B.J.S., 140 Wn. App. at 97.
Finally, finding of fact 23 supports the conclusion that Ms. Quezada's contact with Mr. Tyler was offensive. Physical contact is offensive when "unwarranted by the social usages prevalent at the time and place at which it is inflicted." Restatement (Second) of Torts § 19, cmt. a (1965). Mr. Tyler was a paramedic who was trying to help Ms. Quezada. She hit him while he tried to do his job.
The evidence, then, supports the court's conclusion that Ms. Quezada intentionally hit Mr. Tyler in an offensive manner. And the findings support the conclusion that Ms. Quezada "is guilty of . . . Assault in the Fourth Degree in violation of RCW 9A.36.041." CP at 61 (Conclusion of Law (CL) 7).
Sufficiency of the Evidence — Criminal Trespass
Ms. Quezada next challenges her adjudication of guilt for first degree criminal trespass. She again argues that the findings do not support the conclusion that she formed the necessary intent to commit first degree criminal trespass. She maintains that she was too drunk to act knowingly.
The court concluded that: "[T]he respondent, Deanna Quezada, did knowingly enter or remain unlawfully in the residence of Ms. Bessie Lynch." CP at 60 (CL 3).
A person must act knowingly to be guilty of criminal trespass in the first degree. RCW 9A.52.070(1). Here, Ms. Quezada acted knowingly if she was aware that she entered or remained in Ms. Lynch's home without permission or she had information that would lead a reasonable person in the same situation to believe that she did not have permission to enter or remain in Ms. Lynch's home. RCW 9A.08.010(1)(b) (defining "knowledge"); RCW 9A.52.010(3) (defining "enters or remains unlawfully").
Unchallenged findings of fact 13 and 21 support the conclusion that Ms. Quezada acted knowingly. Again, finding of fact 21 states that "Ms. Quezada did not appear confused and answered questions appropriately" shortly after she was in Ms. Lynch's home. CP at 59. And finding of fact 13 provides that Ms. Lynch did not permit Ms. Quezada to stay in her home:
Ms. Lynch told [Ms. Quezada] that she would have to leave. When Ms. Quezada refused to do so, saying "help me", Ms. Lynch told her she would call the police and took the phone handset off of her wall to do so.
CP at 58.
These facts support the conclusion that Ms. Quezada did not have permission to remain in Ms. Lynch's home. Ms. Lynch told her to leave and picked up the phone to call the police. A reasonable person in Ms. Quezada's situation would believe that she was not welcome to stay in Ms. Lynch's home. The court, therefore, properly concluded that Ms. Quezada knowingly entered or remained in Ms. Lynch's home.
Sufficiency of the Evidence — Age
Ms. Quezada next challenges her adjudication of guilt for being a minor in a public place while exhibiting the effects of having consumed liquor. She argues that the State did not produce sufficient evidence of her age. She specifically challenges conclusion of law 5, which states: "[O]n September 10, 2007, the respondent, Deanna Quezada, was under twenty one years of age." CP at 61.
Ms. Quezada's age is a question of fact. A finding of fact that is mislabeled as a conclusion of law is reviewed as a finding of fact. State v. Ross, 141 Wn.2d 304, 309, 4 P.3d 130 (2000).
The State needed to show that Ms. Quezada was, among other things, less than 21 years old to prove that she was a minor in a public place exhibiting the effects of having consumed liquor. RCW 66.44.270(2)(b); see State v. K.N., 124 Wn. App. 875, 880, 103 P.3d 844 (2004) (due process requires the State to prove juvenile's age where it is an element of the offense charged).
Ms. Quezada claims that the only evidence offered to prove her age was Corporal Dobson's testimony that she read juvenile warnings to Ms. Quezada. She argues that this evidence does not prove her age. The State contends that it produced other evidence of Ms. Quezada's age, including an uncertified, unfiled copy of a marriage certificate, descriptions of Ms. Quezada by Ms. Ortiz and Ms. Lynch, and Ms. Quezada's "immature" behavior. None appear to prove Ms. Quezada's age. Juvenile Warnings
Unchallenged finding of fact 8 states:
Corporal Annalisa Dobson read Ms. Quezada Miranda warnings in their entirety, to include the additional juvenile warnings. Ms. Quezada appeared to understand the warnings, did not appear confused, and indicated that she wished to speak to the officer.
CP at 57-58. This persuaded the commissioner that Ms. Quezada was a minor:
[T]he fact that Corporal Dobson did testify . . . she went through the rights on the state-issued Miranda rights card and turned it over and said "I included the warning to juveniles regarding use of statements . . . in juvenile court as well as adult proceedings". . . . [A]nd based upon that, the court is going to find that it has been shown beyond a reasonable doubt that Ms. Quezada is a minor.
RP at 193. Ms. Quezada contends that finding of fact 8 shows only that the corporal believed Ms. Quezada was a minor.
In State v. Roth, an officer looked at the defendant's identification card and the defendant did not dispute that he or she was under the age of 21. 131 Wn. App. 556, 562, 128 P.3d 114 (2006). We concluded this was sufficient evidence of a defendant's age. Id.
The facts here are distinguishable from those in Roth. Police did not confirm Ms. Quezada's age before giving her juvenile warnings. They did not ask Ms. Quezada her age or look at her identification card. Nor did the police say that they knew Ms. Quezada's age based on previous contacts. The most that can be logically inferred from the reading of juvenile warnings here is that the corporal thought Ms. Quezada looked like she was under 21. A trier of fact could not have inferred Ms. Quezada's age from the language of the juvenile warning. The warning applies if the suspect is under 18:
" If you are under the age of eighteen anything you say can be used against you in a juvenile court prosecution for a juvenile offense and can also be used against you in adult criminal court prosecution if you are to be tried as an adult."
RP at 109 (emphasis added). The warning does not say that it is given because the suspect is under 18. And it does not require the suspect to notify the officer if the warning does not apply to him or her. The evidence the court relied on to support the finding that Ms. Quezada is under 21 is, therefore, insufficient to support the finding.
Marriage Certificate
A marriage certificate (State's Ex. 1) shows Ms. Quezada's birth date. The State argues that certificate is sufficient evidence of her age. But the State specifically offered the exhibit for the sole purpose of showing a relationship between Ms. Quezada and Mr. Covarrubias. And the court admitted the exhibit for that purpose only:
[I]t was the court's intent to have that [marriage certificate] admitted only for purposes of showing the relationship between Ms. Quezada and [Mr. Covarrubias].
RP at 193.
This was a bench trial. We then assume that the trial court disregarded hearsay, excluded irrelevant evidence, and considered only that evidence properly before the court. In re Welfare of Wilson, 91 Wn.2d 487, 490, 588 P.2d 1161 (1979); State v. Adams, 91 Wn.2d 86, 93, 586 P.2d 1168 (1978). We, accordingly, will not consider the State's exhibit as evidence of Ms. Quezada's age because the trial court did not admit it for that purpose.
Witness Descriptions
The State also claims that we can infer Ms. Quezada's age from Ms. Ortiz's and Ms. Lynch's descriptions of Ms. Quezada. Ms. Ortiz referred to Ms. Quezada as a "little girl" when she described the three people who were in the car leaving her house after her windows were broken. RP at 59. Ms. Lynch also referred to Ms. Quezada as a girl when asked to describe the appearance of the person in her kitchen: "I say `girl;' I guess you'd say woman." RP at 90.
Neither Ms. Ortiz nor Ms. Lynch offered an opinion of Ms. Quezada's age. See ER 701 (opinion testimony by lay witnesses). The words they used to describe Ms. Quezada, then, are not sufficient circumstantial evidence of Ms. Quezada's age.
Ms. Quezada's "Immature" Behavior
The State further contends that evidence of Ms. Quezada's immature behavior (e.g., living with her parents, participating in criminal activity, getting drunk, befriending immature people) supports the finding that she is under 21.
In K.N., the court concluded that the "juvenile appearance" of a party was insufficient proof that the defendant there was under 21 years of age. 124 Wn. App. at 884. Likewise, the juvenile appearance of Ms. Quezada's behavior and choices is insufficient to prove that she is under 21. Adults live with their parents, commit crimes, get drunk, and befriend people who are immature or under 21. A person's behavior is insufficient evidence of her age.
The record does not support the court's finding that Ms. Quezada is under the age of 21. We, therefore, reverse her adjudication of guilt for being a minor in a public place while exhibiting the effects of having consumed liquor.
Sufficiency of the Evidence — Hiding
Ms. Quezada next takes issue with the court's finding that "Ms. Quezada endeavored to hide herself in some rose bushes and ivy located in the neighbor's garden." CP at 59 (Finding of Fact 14). She complains that no one testified how or why she was in the bushes.
Finding of fact 14 is not material to the result in this case. Thus, even if the record did not support this finding, an erroneous finding of fact which does not materially affect the trial court's conclusions of law is not prejudicial. State v. Caldera, 66 Wn. App. 548, 551, 832 P.2d 139 (1992).
Nonetheless, the record on appeal supports the finding. Ms. Lynch testified that she saw Ms. Quezada run toward the neighbor's rose bushes. And Officer Harden testified that he found Ms. Quezada hiding in the rose bushes. The inference from this testimony is that Ms. Quezada ran to the bushes to hide from police officers.
We reverse the adjudication of guilt for minor in a public place exhibiting the effects of liquor. We affirm the fourth degree assault and first degree criminal trespass adjudications of guilt.
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.
SCHULTHEIS, C.J. and KULIK, J., concur.