                                                                                                    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

STATE OF WASHINGTON,                                                                 No. 44746 -1 - II


                                           Respondent,


         v.




JESUS OLIVERA, JR.,                                                            UNPUBLISHED OPINION


                                           Appellant.


          JOHANSON, A.C. J. —               A jury found Jesus Olivera, Jr. guilty of first degree burglary and

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    crime.      Because sufficient evidence supports the first degree burglary

conviction, we affirm.



                                                            FACTS


          In late 2012, Jon Ellison traveled to Westport, Washington to spend the Christmas


holiday     with   his   sister' s   family.   Angela Ellison, Jon'     s'   daughter, joined him in Westport. Both


Jon   and   Angela       rented rooms       from The Islander     motel.     Jon' s room was at the building' s far left

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



that wing       during   Jon    and   Angela'        s   stay.    Jon and Angela spent Christmas Eve at Jon' s sister' s


home.      Jon left      around       8: 30 PM           and   returned   to his   motel       room.      Jon went to bed almost


immediately        and woke          up   at   approximately 3: 00 AM.             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   was concerned            by   the   idling      vehicle outside   his    room at     nearly 4: 00 AM. He got out


of   bed   and    began to pass the television                    stand when   the      motel door " came flying through the


room."      Report       of   Proceedings ( RP) ( March 5, 2013)                   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      feet away from Jon.             Olivera said nothing as he continued to

advance.        Fearing for his life,          Jon    approached       Olivera     and   they began       to   wrestle.   The two men


struggled       down the       hallway. Jon and Olivera fell, Olivera bit Jon' s left eyebrow, causing a

serious    laceration.        Jon recounts that Olivera " kept on hollering [ that] he drew blood" and that

Olivera    said   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         around      the      jetty' s    end,     Olivera heard       additional       screams.      He stopped in The


Islander'   s    parking lot     and walked              up to Jon'   s motel room         door.     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   him   immediately    after   entering.   Olivera bit Jon because Jon had Olivera' s sleeves


during   the   struggle and   Olivera   was afraid     that Jon   was   going to hit him. Both Jon and Angela


denied hearing calls for help.

         The State     charged   Olivera   with   first degree    burglary      and   fourth degree     assault.      A jury

found Olivera guilty     on each charge.      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      the intent to   commit a crime.       Olivera contends that the intent to commit


a crime cannot      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   most    favorable to the State.       State v. Wentz, 149 Wn.2d 342, 347, 68 P. 3d


282 ( 2003).     The   relevant question      is "`   whether any rational fact finder could have found the

essential elements of     the   crime   beyond    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)).        We interpret the      evidence "` most    strongly     against   the defendant. '       State


v.   Hernandez, 172 Wn.       App.   537, 543, 290 P. 3d 1052 ( 2012) ( internal quotation marks omitted)




2
    Olivera does not challenge his fourth degree assault conviction.

                                                            3
No. 44746 -1 - II



 quoting State      v.   Joy,   121 Wn.2d 333, 339, 851 P. 2d 654 ( 1993)), review denied, 177 Wn.2d


1022 ( 2013).     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    prove      beyond   a reasonable       doubt that ( 1) Olivera entered or remained


unlawfully in Jon'       s motel room, (      2) Olivera entered or remained in the hotel room with the intent

to    commit    a crime,    and (     3)   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
                                                                                                    3
indicates that the inference is merely                permissive        instead   of   mandatory.       Here, the jury was

instructed as follows:




3
     Mandatory presumptions create problems of constitutional scope because of their potential for
                                                                               beyond                       doubt.   State v.
 circumventing the State'              burden to
                                  s                prove      all   elements              a reasonable

Brunson, 128 Wn.2d 98, 105, 905 P. 2d 346 ( 1995).

                                                                    4
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'   s   Papers    at   47.    The instruction here clearly indicated that the inference is not mandatory.

Therefore, if the jury determined that Olivera entered or remained in the motel room unlawfully,
                                                                                                                          4
                    properly      infer that he did         so   with       the intent to      commit a crime      therein.   But an
they   could



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,          or otherwise privileged               to   so       enter    or remain.    RCW 9A.52. 010( 5).     Here,


Olivera       entered       Jon'   s   motel       room   unlawfully.             Before the altercation on the morning of

December 25,           neither         Jon   nor   Angela had      ever met             Olivera.   Olivera was not registered as a


guest at      The Islander.            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    defendant, Drum, 168 Wn.2d                        at   35,    demonstrates that Olivera was under the


influence       of methamphetamine                  when    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
 693, 699 -700, 911 P. 2d 996 ( 1996).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
 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

 1999).      The inference that Olivera intended to commit a crime arose properly because there was

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).

            Moreover, '           Nile jury is permitted to infer from one fact the existence of another

essential     to   guilt,   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,
 quoting      Tot   v.




the jury was instructed that it may infer that Olivera intended to commit a crime when he kicked
in the      motel room           door   under     the influence   of methamphetamine at        nearly 4: 00 AM.     Olivera


entered      the    room    and advanced           toward Jon, prompting Jon'       s   attempted   self defense.
                                                                                                         -          Olivera


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      doubt. Drum, 168 Wn.2d   at   34 -35.   The evidence was sufficient to support

                           5
Olivera' s   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.
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