      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON




STATE OF WASHINGTON,                       )      No. 71612-3-1


                     Respondent,                  DIVISION ONE                            —;-t

                                                                                     1

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                                                                                    001   :ri"'-';
           V.




DANIEL CONRAD FISCHER,                            UNPUBLISHED
                                                                                    *—      - •


                                                                                    CD     •"     '• "
                     Appellant.            )      FILED: June 8. 2015




       Cox, J. - When permission to enter premises is revoked or expires, entry

thereafter is unlawful. In this prosecution for burglary, assault, and malicious

mischief, there was sufficient evidence for a rational trier of fact to find beyond a

reasonable doubt that Daniel Fischer's prior permission to enter Adam

Kronbeck's residence was revoked or expired when he entered the residence

and assaulted Kronbeck. There was also sufficient evidence for a rational trier of

fact to find that Daniel entered with intent to assault Kronbeck, maliciously

caused damage to Kronbeck's door, and caused Kronbeck substantial pain and

considerable suffering. We affirm Daniel's convictions for first degree burglary,

third degree assault, and third degree malicious mischief.

       In the spring of 2013, Kronbeck lived in a one bedroom, 600 square foot

home in Everett, Washington. He testified at trial that he receives rent
No. 71612-3-1/2




assistance through a federal housing program. The program restricts visitor

stays in the residence to a maximum of two weeks.

       Just before Easter, Kronbeck's friend Rebecca Fischer called and said

she, her husband Daniel, and their daughter had been kicked out of their current

residence and needed somewhere to stay "for a couple of nights." Kronbeck said

"a couple of days is fine." He also told them that visitors could not stay longer

than two weeks under his housing agreement. Kronbeck did not give the

Fischers a key to his house during their stay.

       One day, the Fischers brought guests to the house without Kronbeck's

permission. When Kronbeck expressed his displeasure, the Fischers compared

him to their former landlord and said they were moving out. Daniel appeared to

be "pissed off." The Fischers then packed some things and left with their friends.

They left behind some clothes, canned food, toys, a stereo, a portable crib and a

cat. Kronbeck testified that over the next week, he left messages with the

Fischers "trying to make arrangements for their stuff' and indicating that he was

"not a storage unit." He received no response.

       In the early morning of April 10, Kronbeck decided to move the Fischers'

remaining possessions out of his house and into his front yard. He left a

message with the Fischers telling them what he had done and that they needed

to come get their things. A few hours later, he heard noises in his front yard and

then his back yard. He saw Daniel outside. He opened his back door briefly and
No. 71612-3-1/3




apologized to Daniel, saying "it's not all my fault. I had company." He then

closed and locked the door.


       According to Kronbeck, Daniel kicked in the locked door, damaging the

door frame. He then pushed Kronbeck backwards into his living room and asked

"Who the F else is here?" After checking to see who else was in the house,

Daniel put Kronbeck in a one arm hold and repeatedly struck him in the face,

causing injuries to his eye, nose, cheek, and lip. Kronbeck testified that he still

had pain from the injuries and could no longer sleep on his right side due to the

pain. Kronbeck testified that he never struck, pushed or threatened Daniel. He

also testified that Daniel did not remove or inquire about any property when he

was inside the house.

       Police investigating the incident testified that Daniel denied entering

Kronbeck's house. The police noticed swelling on Daniel's left hand, and he

admitted being left handed. Neither Daniel nor Rebecca told police they needed

something from inside the house or were looking for their cat.

       Rebecca testified that Kronbeck never told them "you are out of here" or

indicated they could not come back for their possessions. She admitted that

Kronbeck never gave them a key to the house, that she and Daniel said nothing

to Kronbeck about their remaining possessions when they left, that they never

called Kronbeck about those possessions after they left, that they received but

did not return Kronbeck's phone calls after they left, that Kronbeck's last

message said "[your] stuff is outside and you better come get it," and that she
No. 71612-3-1/4




and Daniel were angry when they heard the message. She also testified that

they could not have a cat at the motel they moved to and she had expected

Kronbeck would give it away.

       A jury convicted Daniel as charged. He appeals.

                        SUFFICIENCY OF THE EVIDENCE


       Daniel contends his convictions are not supported by sufficient evidence.

"The test for determining the sufficiency of the evidence is whether, after viewing

the evidence in the light most favorable to the State, any rational trier of fact

could have found guilt beyond a reasonable doubt."1 "[A]ll reasonable inferences

from the evidence must be drawn in favor of the State and interpreted most

strongly against the defendant."2 "A claim of insufficiency admits the truth of the

State's evidence and all inferences that reasonably can be drawn therefrom."3

                                       Burglary

       To convict Daniel of first degree burglary under the instructions in this

case, the State had to prove that, with intent to commit a crime against a person

or property therein, he unlawfully entered or remained in a building and while

entering or remaining assaulted any person.4 Daniel contends the State did not

prove that he unlawfully entered or remained or did so with the requisite intent.

We disagree.




       1 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

       3ld
       4 Instruction 21; Clerk's Papers at 109.
No. 71612-3-1/5




       A homeowner can expressly or impliedly revoke the right of a guest to

enter or reside within his dwelling.5 Permission may also expire once the

purpose for which permission was granted is accomplished.6 Viewing the

evidence in a light most favorable to the State, a rational trier of fact could find

that Kronbeck revoked the Fischers' permission to enter his home when, after

they moved out and ceased communicating with him, he put their remaining

possessions outside, told them to come get them, and locked the door in Daniel's

presence. The facts also support a finding that the Fischers' permission to enter

expired when they moved out and ceased communicating with Kronbeck. There

was thus sufficient evidence for the jury to find that Daniel's entry was unlawful.

       There was also sufficient evidence for a rational trier of fact to find that

Daniel entered Kronbeck's residence with intent to assault him. The evidence

indicated that he was angry at Kronbeck, forcibly entered his house, briefly

looked to see who was present, and then, without provocation, assaulted

Kronbeck. Contrary to Daniel's assertions, there was no evidence that he

"entered the house in order to retrieve his remaining items." Kronbeck testified

that Daniel made no inquiries about, or attempts to locate, any property once

inside the house. There was thus sufficient circumstantial evidence for the jury to

find that Daniel entered the residence with intent to assault Kronbeck.



       5 State v. Howe, 57 Wn. App. 63, 71-72, 786 P.2d 824 (1990), rev'd on
other grounds, 116 Wn.2d 466, 805 P.2d 806 (1991); see State v. Collins, 110
Wn.2d 253, 261-62, 751 P.2d 837 (1988).
     6 Howe, 57 Wn. App. at 72.
No. 71612-3-1/6




                                      Assault


       Daniel next contends the evidence was insufficient for a rational trier of

fact to find one of the elements of third degree assault. Specifically, he contends

the evidence failed to demonstrate that the bodily harm he inflicted was

"accompanied by substantial pain that extended for a period of time sufficient to

cause considerable suffering."7 Again, we disagree.

       When asked if he experienced pain from his injuries, Kronbeck testified

"Yeah, I did, quite a bit." He described it as "ongoing pain" and sensitivity from a

fracture. Kronbeck testified that the pain prevents him from sleeping on his right

side. When asked how long the pain lasted, he said "[ujntil today." This

evidence was sufficient to establish the requisite pain and suffering for third

degree assault.

                                 Malicious Mischief

       Finally, Daniel contends his conviction for malicious mischief must be

reversed for lack of evidence that he acted with malice when he damaged

Kronbeck's door. He claims he "was motivated by his need to care for his family

and fear of the loss of property when he entered Mr. Kronbeck's home and broke

the door." But as noted above, the record not only fails to support that alleged

motivation, but it indicates that Daniel's sole motivation was to assault Kronbeck.

Because "malice" includes intent to injure another, the evidence was sufficient to

show that Daniel maliciously caused the damage to Kronbeck's door.


       7 Instruction 7; Clerk's Papers at 95.

                                          6
No. 71612-3-1/7




      We affirm the judgment and sentence.

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WE CONCUR:




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