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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                   No. 70426-5-I


                    Respondent,                       DIVISION ONE


      v.
                                                      UNPUBLISHED OPINION
JAHADV.D. HILL,
B.D. 4/18/95,
                                                       FILED: July 21, 2014
                    Appellant.


      Leach, J. — Jahad Hill appeals his juvenile adjudication for criminal

trespass in the first degree. He argues that the State's evidence was insufficient

and that the admission of testimonial hearsay violated his right of confrontation.

We affirm.


                                     FACTS


      On September 22, 2012, a security guard at The Commons, a Federal

Way shopping mall, received information that Hill and three other juveniles were

suspected of shoplifting from the American Eagle store. The guard followed the

juveniles as they left the mall and used his radio to notify Federal Way Police

Officer Richard Adams, who is assigned to patrol the mall.         Officer Adams

approached the group and told them to stop.       Hill immediately began to run.

Officer Adams placed Hill under arrest for obstruction. After Officer Adams read
No. 70426-5-1 / 2



Hill his Miranda1 rights, Hill admitted that he had been inside the mall but denied

stealing from the American Eagle store.        Officer Adams checked the police

department's computer system and discovered that Hill had been issued a

"permanent trespass notice" on two prior occasions, once in 2009 and once in

2011, prohibiting him from entering the mall. Hill then admitted that he knew that

he was prohibited from entering the mall. He also admitted to giving a false

name when he received the trespass notice in 2011. The State charged Hill with

one count of criminal trespass in the first degree.

       At trial, Officer Adams testified that he had issued Hill the trespass notice

in 2009 for "stealing at Sears and several other stores." When asked whether he

remembered the circumstances surrounding the 2009 trespass notice, Officer

Adams stated that he did not have any personal recollection "[ojther than that he

was arrested for theft and that he had been identified as stealing from several

stores." Hill did not object to this testimony. Officer Adams did not issue the

2011 trespass notice and did not have personal knowledge of the underlying

circumstances.


       Following a fact-finding hearing, the trial court found Hill guilty as charged.

Hill appeals.




      Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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No. 70426-5-1 / 3



                                     DISCUSSION


Sufficiency of the Evidence

      Sufficient evidence supports an adjudication of guilt in a juvenile

proceeding if, viewed in the light most favorable to the State, it permits any

rational trier of fact to find the essential elements of the crime beyond a

reasonable doubt.2 All reasonable inferences from the evidence must be drawn


in favor of the State and against the defendant.3 We defer to the trier of fact on

issues of conflicting testimony, credibility of witnesses, and the persuasiveness of

the evidence.4


      "In reviewing a juvenile court adjudication, we must decide whether

substantial evidence supports the trial court's findings of fact and, in turn,

whether the findings support the conclusions of law."5 We review conclusions of

law de novo.6


      A person commits criminal trespass in the first degree if the person

knowingly enters or remains unlawfully in a building.7        A person "enters or

remains unlawfully" in or upon premises when he or she is not licensed, invited,



    2 State   v.   Echeverria, 85 Wn. App. 777, 782, 934 P.2d 1214(1997).
    3 State   v.   Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
    4 State   v.   Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
    5State    v.   B.J.S., 140 Wn. App. 91, 97, 169 P.3d 34 (2007).
    6 State   v.   Lew, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006).
    7 RCW 9A.52.070.


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No. 70426-5-1/4



or otherwise privileged to so enter or remain.8          However, it is a defense to

criminal trespass if "[t]he premises were at the time open to members of the

public and the actor complied with all lawful conditions imposed on access to or

remaining in the premises."9 "Once a defendant has offered some evidence that

the entry was permissible under a statutory defense, the State bears the burden

to prove beyond a reasonable doubt that the defendant lacked license to enter."10

Because this defense challenges the sufficiency of the State's evidence, a

defendant may raise it for the first time on appeal.11

       Here, the record includes evidence sufficient to support the trial court's

adjudication.   Hill had been notified on two separate occasions that he was

permanently prohibited from entering the mall. Following a valid waiver of his

Miranda rights, Hill admitted that he had entered the mall in violation of the

trespass notices.   Because the trespass notices revoked Hill's license to enter

the mall, his entry to the mall was unlawful.

       Citing State v. Green12 and State v. R.H.,13 Hill contends that the State

must prove more than the defendant's exclusion from the property; rather, it must



    8RCW9A.52.010(5).
    9 RCW 9A.52.090(2).
    10 State v. Green, 157 Wn. App. 833, 844, 239 P.3d 1130 (2010) (citing City
of Bremerton v. Widell, 146 Wn.2d 561, 570, 51 P.3d 733 (2002)).
    11 State v. R.H., 86 Wn. App. 807, 811, 939 P.2d 217 (1997).
    12 157 Wn. App. 833, 239 P.3d 1130 (2010).

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No. 70426-5-1 / 5



prove that the exclusion was lawful. In other words, argues Hill, the State must

prove that he stole from mall stores in 2009.

       In Green, a school district issued the defendant a trespass notice

prohibiting her from going to her child's elementary school except under very

limited circumstances.14 The district asserted as the basis for the trespass notice

the defendant's alleged disruptive behavior at the school's curriculum night and

disregard of a staff member's instructions in the school parking lot.15 At trial, an

attorney for the school district testified to the reasons for the trespass notice but

admitted he had no personal knowledge of the underlying events.16 Over the

defendant's hearsay objection, the trial court admitted this testimony to explain

the school's reason for issuing the trespass notice but not to prove the alleged

disruptions occurred.17          The defendant testified that she had not been

disruptive.18 Because there was no competent testimony to establish that the

school district had any factual basis for revoking the defendant's statutory right to

access her child's school, this court held that the State failed to prove the

lawfulness of the trespass notice.19 This court reversed the trespass conviction.20


    13 86 Wn. App. 807, 939 P.2d 217 (1997).
    14 Green,   157 Wn.   App.   at   838-40.
    15 Green,   157 Wn.   App.   at   842.
    16 Green,   157 Wn.   App.   at   852.
    17 Green,   157 Wn.   App.   at   852.
    18 Green,   157 Wn.   App.   at   842-43.
    19 Green,   157 Wn.   App.   at   852.
No. 70426-5-1 / 6



         In R.H., a restaurant manager told several youths skateboarding and

loitering in the restaurant parking lot to leave, but they did not comply.21   R.H.

was not part of this group; he arrived at the restaurant later by skateboard to wait

for a friend and eat at the restaurant.22 At the manager's request, a police officer

told all of the youths, including R.H., that they would be arrested for criminal

trespass if they did not leave.23 R.H. did not believe he was required to leave

because he planned to be a customer at the restaurant.24         When he did not

leave, he was arrested and charged with criminal trespass.25 The evidence at

trial established that R.H. repeatedly told the arresting officer he was waiting for

another customer and that if R.H. had been planning to eat at the restaurant, he

had permission to be on the premises.26 This court held that the State failed to

prove R.H.'s presence was unlawful because he had complied with "'all lawful

conditions imposed on access.'"27

         Green and R.H. are distinguishable. To require the State to prove a lawful

basis for the trespass notice, Hill must present "some evidence" that he complied



    20   Green, 157 Wn. App. at 853.
    21   RJ±, 86 Wn. App. at 808.
    22   RJ±, 86 Wn. App. at 808-09.
    23   RJ±, 86 Wn. App. at 809.
    24   RJ±, 86 Wn. App. at 809.
    25R.H.,86Wn.App.at810.
    26RJ±, 86 Wn. App. at 811.
    27 RJ±, 86 Wn. App. at 812 (quoting RCW 9A.52.090(2)).


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No. 70426-5-1 / 7



with lawful conditions imposed on his access to the mall. The defendants in

Green and R.H. both asserted that they had not engaged in the behavior alleged

as the basis for the trespass notice. In contrast, Hill presented no such evidence.

The burden did not shift to the State to establish a lawful basis for the trespass

notice.


          Moreover, Officer Adams testified that Hill "was arrested for theft

and . . . had been identified as stealing from several stores." Hill did not object to

the statement.      The record is unclear whether Officer Adams had personal

knowledge of these events.       But, by challenging the sufficiency of the State's

evidence, Hill has necessarily admitted the truth of Officer Adams's testimony.

Based on this evidence, a rational trier of fact could have found a lawful basis for

the trespass notice.

Confrontation Clause


          The confrontation clauses of the state and federal constitutions guarantee

the right of an accused to confront witnesses against him or her.28 Admission of

testimonial hearsay violates a defendant's right of confrontation unless the

witness is unavailable and the defendant had an earlier opportunity to cross-




    28 U.S. Const, amend. VI; Wash. Const, art. I, § 22.
No. 70426-5-1 / 8



examine about the statement.29 Hearsay is "a statement, other than one made

by the declarant while testifying at the trial or hearing, offered in evidence to

prove the truth of the matter asserted."30 This court reviews confrontation clause

challenges de novo.31

       Hill argues that Officer Adams provided testimonial hearsay when he

testified that Hill received a trespass notice in 2009 for stealing from mall stores.

But Hill does not show that Officer Adams repeated any out-of-court statements

of others. Neither the State nor Hill questioned Officer Adams as to the basis of

his knowledge that Hill had stolen merchandise or was arrested.           Testimony

based on one's personal knowledge is not hearsay.32 Thus, because Hill does

not show that Officer Adams testified to something about which he lacked

personal knowledge, Hill fails to show a violation of his confrontation right.

       Moreover, Hill did not object to the testimony or assert his right to

confrontation below. A defendant must raise a confrontation clause claim at or




    29 Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed.
2d 177(2004).
    30 ER 801(c).
    31 State v. Koslowski, 166 Wn.2d 409, 417, 209 P.3d 479 (2009).
    32 State v. Simmons, 63 Wn.2d 17, 22, 385 P.2d 389 (1963).


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No. 70426-5-1 / 9



before trial to preserve this issue for appellate review. Hill waived any right of

confrontation by failing to timely assert it.

       Affirmed.


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WE CONCUR:




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