                                                                           FILED 

                                                                        August 13, 2015 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





               IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                                  DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )         No. 32733-7-III
                       Respondent,            )
                                              )
          v.                                  )
                                              )
MARTIN FIGUEROA,                              )         UNPUBLISHED OPINION
                                              )
                       Appellant.             )

          BROWN, A.C.J. - Under Washington statute RCW 66.44.270(2)(b), it is

unlawful for a minor to be in a public place while exhibiting the effects of having

consumed liquor. One of the elements of the offense is that the suspect must have the

odor of alcohol on his or her breath. RCW 66.44.270(2)(b). A Yakima County Superior

Court judge found Martin Figueroa guilty of being a minor exhibiting the effects of

consuming liquor in public. On appeal, Mr. Figueroa contends the evidence is

insufficient to support the court's finding that his breath smelled of alcohol. We find the

circumstantial evidence sufficient to support this element beyond a reasonable doubt, and

affirm.
No. 32733-7-II1
State v. Figueroa


                                           FACTS

       Late on Halloween night in 2013, the Sunnyside police department received a

noise complaint from a homeowner on a dead end street in a residential neighborhood.

Officer Melissa Rivas responded. As she entered the street, her headlights illuminated

several young people in and around a parked car. Officer Rivas saw movement in and

around the car, including the throwing of a blue liquor bottle from the rear passenger area

of the car. She activated her emergency lights and a spotlight and approached on foot.

       Officer Rivas asked the four boys and two girls in the car to get out and sit on the

ground while she waited for backup. As they stepped out of the car, she detected the

odor of alcohol. All of the car's occupants were younger than 21 years of age. Officer

Rivas asked each separately whether he or she had been drinking alcohol, and each

indicated he or she had. She smelled alcohol on each of them. Some of them appeared

intoxicated---especially Mr. Figueroa, who had slurred speech and watery, bloodshot

eyes. Mr. Figueroa also became argumentative during the questioning. After backup

arrived, the young people were taken to the police facility, their parents were called, and

they were released to their parents.

       The State charged the four boys, including Mr. Figueroa, with being minors in a

public place while exhibiting the effects of consuming liquor. 1 They were tried together.



       1 The   record does not indicate whether the girls were also charged.

                                              2

     No. 32733-7-III
     State v. Figueroa


     Officer Rivas testified that each of the respondents smelled of alcohol. After the State

     rested its case, the four respondents moved to dismiss for failure to prove the specific

     element of the odor of alcohol on their breaths. The trial judge granted the motion as it

     related to two respondents who had not exhibited other signs of intoxication, but denied

     the motion as it related to Mr. Figueroa and another respondent. Eventually, the trial

     court acquitted the third respondent and found only Mr. Figueroa guilty of the charge. In

     its findings of fact and conclusions of law, the trial court stated that

I           [t]he respondent was verbally combative and argumentative with the
            officers. He appeared to Officer Rivas to be under the influence of alcohol.
1           She could also smell the odor of alcohol on the respondent, and the court

I
          finds that this odor was coming from his breath. 




I

     Clerk's Papers at 31. 


                                              ANALYSIS

            Mr. Figueroa contends the State failed to prove each element of the offense

     beyond a reasonable doubt because there was no specific evidence that he had the odor of

     alcohol on his breath.

            Evidence is sufficient to support a conviction if, after viewing the evidence in the

     light most favorable to the State, we conclude that any rational fact finder could have

     found the elements of the crime beyond a reasonable doubt. State v. Homan, 181 Wn.2d

     102, 105,330 P.3d 182 (2014). Specific to review of bench trials, we determine whether

     substantial evidence supports each of the trial court's challenged findings of fact and


                                                    3

No. 32733-7-III
State v. Figueroa


whether the findings support the conclusions of law. Id. at 105-06. Substantial evidence

is that quantum of evidence "sufficient to persuade a fair-minded person of the truth of

the asserted premise." Id. at 106. Circumstantial evidence is as reliable as direct

evidence. State v. Arquette, 178 Wn. App. 273, 282,314 P.3d 426 (2013) (citing State v.

Delmarter, 94 Wn.2d 634,638,618 P.2d 99 (1980)). In claiming insufficient evidence,

the appellant necessarily admits the truth of the State's evidence and all reasonable

inferences arising from that evidence. Homan, 181 Wn.2d at 106. We defer to the trier

of fact's evaluation of the persuasiveness of the evidence, and treat unchallenged findings

as verities. Id.

       To prove that Mr. Figueroa violated RCW 66.44.270(2)(b), the State was required

to present evidence that he was under 21 years of age, in a public place or in a motor

vehicle in a public place, and that he exhibited the effects of having consumed liquor.

For the purposes of this subsection, "exhibiting the effects of having consumed liquor"

means that the minor has the odor of liquor on his or her breath and eitheris close to a

container that has had liquor in it or exhibits behavior showing the influence of liquor.

RCW 66.44.270(2)(b). Mr. Figueroa challenges solely the court's finding that he had the

odor of liquor on his breath.

       Officer Rivas never testified that she smelled the odor of alcohol specifically on

Mr. Figueroa's breath. She did, however, state that she questioned each juvenile

separately, each indicated that he or she had been drinking alcohol, and each smelled of

                                             4

No. 32733-7-II1
State v. Figueroa


alcohol. She also testified that Mr. Figueroa acted as though he was under the influence

of liquor. Mr. Figueroa contends Officer Rivas's testimony could indicate that the odor

of alcohol was pn his clothing, hair, or skin, caused by spilled liquor. But the additional

evidence that he admitted he had been drinking and exhibited the effects of drinking

alcohol substantially supports the trial court's finding that the odor at least in some

discemable degree came from his breath.

       The unchallenged findings establish that Mr. Figueroa was a minor in a public

place and appeared to be under the influence of liquor. We conclude that substantial

evidence supports the trial court's reasonable inference that Mr. Figueroa's breath

smelled of alcohol. Thus, the State met its burden of proof on every element of the

charge of being a minor in a public place while exhibiting the effects of consuming.

liquor. RCW 66.44.270(2)(b).

       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

2.04.060.

                                             ~a~
                                              Brown, A.C.J.
WE CONCUR:




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