IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

 v.

OSCAR CHURAPE-MARTINEZ,

Appellant.

DIVISION ONE

No. 79565-1-I

UNPUBLISHED OPINION

DWYER, J. — Following his convictions for residential burglary, unlawful 

imprisonment, attempting to elude a pursuing police vehicle, and malicious 

mischief in the third degree, Oscar Churape-Martinez appeals. On appeal, he 

asserts that insufficient evidence supported his residential burglary and malicious 

mischief convictions, that the wording of a jury instruction allowed him to be 

convicted of acts of malicious mischief with which he was not charged, and that 

prosecutorial misconduct denied him a fair trial. Finding no error, we affirm.

I

Jacob Morrison lived in a trailer in Friday Harbor with his girlfriend, Mikkiah 

Bradley, and Bradley’s sister, M.J.B.1 In September 2018, M.J.B. was 16 years 

old and dating 22-year-old Oscar Churape-Martinez. Morrison and Mikkiah were 

disinclined to support M.J.B. in this relationship because M.J.B. and Churape-

 

1 Because Mikkiah Bradley and M.J.B.’s mother, Rashelle Bradley, share a surname, they 

are referred to herein by their first names to avoid confusion. No disrespect is intended.
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Martinez argued frequently. Eventually, Morrison and Mikkiah told ChurapeMartinez that he was not welcome at their house. 

On September 26, 2018, at around 3:00 or 4:00 p.m., M.J.B. went to sleep 

at Morrison’s house. Mikkiah was home at this time but left with Morrison while 

M.J.B. was still asleep. Mikkiah left a few cigarettes for M.J.B. with a note 

explaining that she and Morrison were out of the house but would return soon. 

Mikkiah and Morrison ensured that the front door of Morrison’s home was locked 

before departing. 

Upon leaving Morrison’s home, Mikkiah saw Churape-Martinez across the 

street, helping a neighbor address an issue with the neighbor’s vehicle. Mikkiah

considered Churape-Martinez’s presence in the area to be unusual. 

After a few hours had passed, Mikkiah and Morrison returned home to find 

that “everything was messed up.” The door knob and lock on the front door of 

the home had both been broken, and a chair and a pot on the front porch had 

been overturned. Although Mikkiah’s note and the cigarettes were in the same 

place she had left them, M.J.B. was gone. The room in which M.J.B. had been 

sleeping was “trashed,” with both a mirror and a fan that had been within broken. 

Mikkiah asked Morrison to telephone 911 because M.J.B. was missing. Morrison 

did so. 

Churape-Martinez, meanwhile, had independently attracted the attention 

of local law enforcement when he was seen driving along area roads at speeds 

far above the posted speed limits. Two police vehicles followed Churape-
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Martinez with their sirens activated, attempting to induce him to pull over, without 

success. Ultimately, Churape-Martinez drove into a residential driveway.

Once the vehicle had stopped, M.J.B. telephoned her mother, Rashelle 

Bradley, and asked to be picked up. She stated that she had been sleeping at 

Morrison’s house when she was roused by Churape-Martinez breaking down the 

front door, that she had departed with Churape-Martinez in his vehicle after he 

claimed to have a firearm, and that the police were pursuing his vehicle. While 

she was talking to M.J.B., Rashelle had her husband telephone 911 and provide 

the address where M.J.B. was located. However, Churape-Martinez then drove 

to a different house, where police first located his parked vehicle, and then 

located Churape-Martinez and M.J.B. Churape-Martinez was arrested.

When San Juan County Sheriff’s Detective Lachlan Buchanan arrived at 

the scene, she saw M.J.B. and her father standing in the house’s driveway while 

Churape-Martinez was seated in the back seat of a police vehicle. Both M.J.B.

and Churape-Martinez were questioned at the police station. Churape-Martinez 

initially denied that he had been driving his vehicle and claimed that it had been 

stolen. Later, he stated that he was working on a vehicle at a friend’s house 

when he went to Morrison’s house because “he was pissed off ‘cause they used 

dope there.” 

Churape-Martinez was charged with four offenses: (1) residential burglary 

aggravated by domestic violence, (2) unlawful imprisonment, also aggravated by 

domestic violence, (3) attempting to elude a pursuing police vehicle, (4) and 

malicious mischief in the third degree. 
No. 79565-1-I/4

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Although Churape-Martinez did not testify at trial, M.J.B., still a minor, did 

so because of her belief that it would be “good for [Churape-Martinez].” 

According to M.J.B., she went to Morrison’s house because she felt ill and 

needed rest after having an argument with Churape-Martinez the night before. 

She explained that Churape-Martinez kept her “on a really short leash.” M.J.B.

claimed that Churape-Martinez broke down Morrison’s door out of concern for 

her because no one had answered his knocks and “he was freaked out.” 

Because Churape-Martinez was angry with her, M.J.B. refused to leave and, 

while the two were arguing, he broke the mirror. Although she left the home 

barefoot, she denied that Churape-Martinez had shoved or otherwise forced her 

into his car, claiming that he only opened the door for her to enter the vehicle. 

Once she had done so, M.J.B. testified, an argument ensued because 

Churape-Martinez was both intoxicated and was failing to heed posted speed 

limits. M.J.B. asked him to leave her with her mother and, when he refused, she 

telephoned her mother herself. Her statements to her mother, although 

inconsistent with M.J.B.’s own later testimony, were admitted as evidence under 

the excited utterance exception to the hearsay rule. As her mother testified:

She said, Mom, I was sleeping at Oscar’s and—I mean, at 

Jacob’s, I’m sorry, and Oscar woke—I woke up to hearing banging 

and the—and then she said, I’m just really scared. He made me 

get into the car, and he was—and there was cops. And—and he 

said that he was taking me with him. And I said, let me out, and he 

would not let me out. And now we’re here.[2]

 

2 M.J.B. also told her mother that Churape-Martinez claimed to have a gun, although M.J.B.

had not seen it. 
No. 79565-1-I/5

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The jury convicted Churape-Martinez on all four counts. The court sentenced 

him to a total of 17 months of confinement. He appeals.

II

First, Churape-Martinez claims that insufficient evidence supported his 

conviction for residential burglary. This is so, he asserts, because the State did 

not prove his intent to commit a crime in Morrison’s residence. However, when 

the totality of the evidence adduced at trial is viewed in the light most favorable to 

the State, it is apparent that Churape-Martinez’s averment is devoid of merit. 

The due process clauses of the federal and state constitutions require that 

the State prove every element of a crime beyond a reasonable doubt. Apprendi 

v. New Jersey, 530 U.S. 466, 476-77, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); 

U.S. CONST. amend. XIV, § 1; WASH. CONST. art. 1, § 3. “[T]he critical inquiry on 

review of the sufficiency of the evidence to support a criminal conviction must be 

. . . to determine whether the record evidence could reasonably support a finding 

of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318, 99 

S. Ct. 2781, 61 L. Ed. 2d 560 (1979). “[T]he relevant question is whether, after 

viewing the evidence in the light most favorable to the prosecution, any rational 

trier of fact could have found the essential elements of the crime beyond a 

reasonable doubt.” Jackson, 443 U.S. at 319. 

“A claim of insufficiency admits the truth of the State’s evidence and all 

inferences that reasonably can be drawn therefrom.” State v. Salinas, 119 

Wn.2d 192, 201, 829 P.2d 1068 (1992). “In determining the sufficiency of the 
No. 79565-1-I/6

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evidence, circumstantial evidence is not to be considered any less reliable than 

direct evidence.” State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). 

The elements of residential burglary are set forth in RCW 9A.52.025, 

which provides:

(1) A person is guilty of residential burglary if, with intent to commit 

a crime against a person or property therein, the person enters or 

remains unlawfully in a dwelling other than a vehicle. 

Thus, to establish that Churape-Martinez was guilty of the offense, the 

State was required to prove (1) that he entered or remained unlawfully in a 

dwelling other than a vehicle and (2) that he intended to commit a crime against 

a person or property therein. State v. Stinton, 121 Wn. App. 569, 573, 89 P.3d 

717 (2004). A person enters or remains unlawfully in a dwelling if he does so 

without license, invitation, or privilege. RCW 9A.52.010(2). Permission to enter 

or remain in the dwelling may only be given by a person who resides in or 

otherwise has authority over the property. State v. Grimes, 92 Wn. App. 973, 

978, 966 P.2d 394 (1998). 

To argue that he did not intend to commit a crime against a person or 

property within the dwelling, Churape-Martinez relies on M.J.B.’s testimony. 

M.J.B. indicated that Churape-Martinez broke into Morrison’s home because he 

was “freaked out” and “he just wanted to protect me, honestly.” He also 

highlights M.J.B.’s failure to recall how or when Morrison’s mirror was broken. In 

making this argument, Churape-Martinez misapprehends the standard of review 

to which we adhere: when an appellant challenges the sufficiency of the 

evidence supporting his conviction, all evidence, and all reasonable inferences 
No. 79565-1-I/7

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therefrom, must be construed in the light most favorable to the State. Salinas, 

119 Wn.2d at 201.

A juror could find that the evidence herein showed that Churape-Martinez 

did not have permission to enter the home and that he was angry. He chose to 

wait outside the home under the pretense of helping Morrison’s neighbor until 

Morrison and Mikkiah had left. Upon their departure, he broke down the home’s 

front door, broke several objects inside, argued with M.J.B. and told her that he 

was armed, and forced her to leave the home in his vehicle without allowing her 

to put on shoes. M.J.B. admitted to feeling “threatened” and told her mother that 

she was scared. She also admitted that Churape-Martinez broke Morrison’s 

mirror. This was consistent with Detective Buchanan’s testimony, in which he

indicated that Churape-Martinez admitted to breaking the mirror because he was 

angry.

A rational trier of fact could conclude from this evidence that ChurapeMartinez unlawfully entered Morrison’s home with the intent to commit a crime 

therein. Churape-Martinez was angry when he broke down the front door and 

proceeded to damage personal property. In doing so, he also accosted a 

sleeping M.J.B., told her that he had a gun, and coerced her into leaving the 

house barefoot and departing in his vehicle. Thus, viewed in the light most 

favorable to the State, the evidence is clearly sufficient to support the verdict 

finding Churape-Martinez guilty of residential burglary.
No. 79565-1-I/8

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III

Churape-Martinez also attacks the sufficiency of the evidence supporting 

his conviction for malicious mischief in the third degree. Specifically, he claims 

that the evidence adduced at trial does not support a finding that he acted with 

malice when he destroyed Morrison’s personal property. As overwhelming 

evidence supports such a finding, his claim is meritless. 

Again, in challenging the sufficiency of the evidence, Churape-Martinez 

admits the truth of both the evidence against him and all reasonable inferences 

supported by that evidence. Salinas, 119 Wn.2d at 201. We construe both the 

evidence and the inferences in the light most favorable to the State and will 

reverse only if no reasonable juror, when presented with this evidence, could find 

Churape-Martinez guilty of the charged offense. Jackson, 443 U.S. at 319.

The applicable definition of malicious mischief in the third degree is 

provided in RCW 9A.48.090.

(1) A person is guilty of malicious mischief in the third degree if he 

or she:

(a) Knowingly and maliciously causes physical damage to 

the property of another, under circumstances not amounting to 

malicious mischief in the first or second degree.

As to the definition of “malice,”

“Malice” and “maliciously” shall import an evil intent, wish, or design 

to vex, annoy, or injure another person. Malice may be inferred 

from an act done in willful disregard of the rights of another, or an 

act wrongfully done without just cause or excuse, or an act or 

omission of duty betraying a willful disregard of social duty.

RCW 9A.04.110(12).
No. 79565-1-I/9

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As the evidence makes clear, Churape-Martinez destroyed property inside 

Morrison’s home without just cause or excuse. Churape-Martinez himself stated 

that he was angry when he broke Morrison’s mirror. It may be easily inferred from 

the evidence that these actions were intended to vex, injure, or annoy M.J.B., 

Morrison, Mikkiah, or all three. 

Thus, his challenge fails.

IV

Churape-Martinez next alleges a violation of his Sixth Amendment right to 

be convicted only of a crime with which he was charged. This is so, he asserts, 

because the information charging him with the crime of malicious mischief in the 

third degree identified property which Churape-Martinez was alleged to have 

damaged, but the jury’s “to-convict” instruction did not mention the property that 

was damaged with any particularity. Churape-Martinez’s argument relies on 

conflation of the respective purposes, and requirements, applicable to the 

information and to the jury instructions. 

“Jury instructions and charging documents serve different functions.” 

State v. Vangerpen, 125 Wn.2d 782, 788, 888 P.2d 1177 (1995). The purpose of 

a charging document is to provide notice to the defendant of the charge against 

him and its factual basis. State v. Pelkey, 109 Wn.2d 484, 487, 745 P.2d 854 

(1987). It is not to inform the jury of the same—for the jury, the case is contained 

in an elements instruction and the accompanying definitional instructions. State 

v. Smith, 131 Wn.2d 258, 262-63, 930 P.2d 917 (1997). “Jury instructions 

‘allow[ ] each party to argue its theory of the case’ and ‘must convey to the jury 
No. 79565-1-I/10

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that the State bears the burden of proving every essential element of a criminal 

offense beyond a reasonable doubt.’” State v. Porter, 186 Wn.2d 85, 93, 375 

P.3d 664 (2016) (alteration in original) (quoting State v. Bennett, 161 Wn.2d 303, 

307, 165 P.3d 1241 (2007)). 

“In criminal cases, the State assumes the burden of proving otherwise 

unnecessary elements of the offense when such added elements are included 

without objection in the ‘to convict’ instruction.” State v. Hickman, 135 Wn.2d 97, 

102, 954 P.2d 900 (1998) (citing State v. Lee, 128 Wn.2d 151, 159, 904 P.2d 

1143 (1995)). However, the inclusion of an otherwise unnecessary element of 

the offense in an information does not mandate that element’s inclusion in the 

jury’s instructions. “[N]ot every omission of information from a ‘to convict’ jury 

instruction relieves the State of its burden of proof; only the total omission of 

essential elements can do so.” State v. Sibert, 168 Wn.2d 306, 312, 230 P.3d 

142 (2010). 

In fact, our courts have repeatedly held that references to specific pieces 

of evidence in to-convict jury instructions may be constitutionally prohibited 

comments on the evidence. See, e.g., State v. Levy, 156 Wn.2d 709, 716, 720-

21, 132 P.3d 1076 (2006) (instruction providing State had to prove defendant 

entered or remained unlawfully in a “building, to-wit: the building of Kenya White,” 

when whether alleged victim Kenya White lived in building was a question for the 

jury, necessitated reversal of conviction); State v. Becker, 132 Wn.2d 54, 64, 935 

P.2d 1321 (1997) (special verdict form asking jury whether defendants were 

within 1,000 feet of school, “to-wit: Youth Employment Education Program 
No. 79565-1-I/11

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School,” was unconstitutional because whether program office was actually a 

school was fact question for the jury). The Washington Constitution prohibits a 

judge from expressing to the jury his or her opinion about the merits or facts of a 

case. CONST. art. IV, § 16. “[A]n instruction that states the law correctly and is 

pertinent to the issues raised in the case does not constitute a comment on the 

evidence.” State v. Winings, 126 Wn. App. 75, 90, 107 P.3d 141 (2005) (citing 

State v. Johnson, 29 Wn. App. 807, 811, 631 P.2d 413 (1981)). 

The information charging Churape-Martinez with malicious mischief in the 

third degree stated:

That the defendant OSCAR CHURAPE MARTINEZ in the 

County of San Juan, State of Washington, on or about September 

26, 2018, did commit the crime of Malicious Mischief in the Third 

Degree: did knowingly and maliciously cause physical damage in 

an amount not exceeding $750.00 to the property of another, to-wit: 

door and/or frame and/or mirror, belonging to Jacob Morrison 

contrary to RCW 9A.48.090(1)(a), and against the peace and 

dignity of the State of Washington.

The to-convict instruction for malicious mischief herein provided, in 

relevant part:

To convict the defendant of the crime of malicious mischief in the 

third degree, each of the following two elements of the crime must 

be proved beyond a reasonable doubt:

(1) That on or about September 26, 2018, the defendant knowingly 

and maliciously caused physical damage to the property of another, 

and

(2) That this act occurred in the State of Washington County of San 

Juan.

These elements reflect those set forth in RCW 9A.48.090. The evidence 

adduced at trial showed only one continuing course of conduct in which ChurapeMartinez broke into Morrison’s home and damaged property inside. There was 
No. 79565-1-I/12

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no evidence adduced of Churape-Martinez damaging property at any other 

location on this date.

This case is not analogous to State v. Jain, 151 Wn. App. 117, 210 P.3d 

1061 (2009) or State v. Brown, 45 Wn. App. 571, 726 P.2d 60 (1986), as 

Churape-Martinez would have us believe. In Jain, the defendant had been 

charged with two counts of money laundering based on the transfer of two 

parcels of real property, but the evidence at trial adduced that he had actually 

transferred seven different properties on the same day. 151 Wn. App. at 120-23. 

Although only two money laundering offenses were charged, the existence of 

seven possible offenses meant that a unanimity instruction or an election of the 

specific transfers giving rise to the charges was necessary. Jain, 151 Wn. App.

at 124. In Brown, the defendant was charged by information of conspiring with 

11 specifically named people to commit theft, but the to-convict instruction 

required the jury only to find the defendant agreed with “one or more persons” to 

engage in the conduct. 45 Wn. App. at 576. As several witnesses not named in 

the information nonetheless testified to their involvement in the conspiracy, we 

held that the instruction improperly allowed the jury to convict the defendant of 

conspiring with an uncharged witness. Brown, 45 Wn. App. at 576.

However, here, there is no evidence indicating that Churape-Martinez 

committed multiple incidents of malicious mischief on September 26, 2018, and 

thus nothing that would give rise to the possibility of a conviction for an 

uncharged offense. That evidence tended to prove that he broke several items 

of Morrison’s personal property when he was in the home does not mean a new 
No. 79565-1-I/13

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or separate course of conduct ensued such that he could be convicted of an 

incident of malicious mischief for which he was not charged. The ambiguities 

fostered by the improvidently worded jury instructions in Brown and Jain are not 

present here. There was no error.

V

Finally, Churape-Martinez avers that prosecutorial misconduct during the 

State’s closing argument denied him a fair trial. His claim of misconduct is 

premised on the prosecutor’s statements regarding the elements of burglary—

statements that, as the State concedes on appeal, were incorrect. Because 

Churape-Martinez cannot show prejudice resulting from this misstatement, his 

claim fails.

A defendant alleging prosecutorial misconduct bears the burden of proving 

that the prosecutor’s conduct was both improper and prejudicial. State v. Emery, 

174 Wn.2d 741, 756, 278 P.3d 653 (2012). Once a defendant establishes that a 

prosecutor’s statements were improper, the appellate court determines whether 

the defendant is entitled to relief by applying one of two standards of review. 

Emery, 174 Wn.2d at 760. The first standard, which applies if the defendant 

timely objected at trial and the objection was overruled, requires that the 

defendant show that the prosecutor’s misconduct led to prejudice that had a 

substantial likelihood of affecting the jury’s verdict. Emery, 174 Wn.2d at 760. 

The second standard applies if the defendant did not object at trial. In that 

event, the defendant is deemed to have waived the claim of error unless the 

defendant can show that “(1) ‘no curative instruction would have obviated any 
No. 79565-1-I/14

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prejudicial effect on the jury’ and (2) the misconduct resulted in prejudice that 

‘had a substantial likelihood of affecting the jury verdict.’” Emery, 174 Wn.2d at 

761 (quoting State v. Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43 (2011)).

Here, given that Churape-Martinez did not object to the prosecutor’s 

comment at trial, the latter standard applies. The prosecutor’s statement as to 

the elements of residential burglary was as follows:

Now, as far as residential burglary goes, intent is defined for 

you. . . . [T]hey don’t have to intend to commit a crime. They have 

to intend to commit an act that happens to be a crime. So when he 

entered that home unlawfully, when he crossed that threshold, 

when he committed trespass going in there, he committed 

residential burglary. 

It doesn’t matter that he committed more crimes later that he 

may not have preconceived as he crossed the threshold. It’s not 

complicated. He broke the door down; that’s a crime. And then he 

committed a variety of crimes when he’s . . . inside. 

So all he’s got to intend is crossing that threshold. Breaking 

that door, he’s got to intend that. . . .

. . . .

. . . Residential burglary was committed the moment he 

walked up on that door and crossed that threshold.

Churape-Martinez fails to show that the prosecutor’s comments were “so 

flagrant and ill intentioned that an instruction could not have cured the resulting 

prejudice.” Emery, 174 Wn.2d at 760-61. In fact, he does not demonstrate any 

likelihood of prejudice stemming from these remarks. As is discussed above, 

abundant evidence supported Churape-Martinez’s conviction for residential 

burglary. Further, the jury was instructed that

[t]he lawyers’ remarks, statements, and arguments are intended to 

help you understand the evidence and apply the law. It is 

important, however, for you to remember that the lawyers’ 

statements are not evidence. The evidence is the testimony and 

the exhibits. The law is contained in my instructions to you. You 
No. 79565-1-I/15

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must disregard any remark, statement, or argument that is not 

supported by the evidence or the law in my instructions.

The court also instructed the jury as to the statutory elements of 

residential burglary. “We presume that juries follow lawful instructions.” Spivey 

v. City of Bellevue, 187 Wn.2d 716, 738, 389 P.3d 504 (2017). ChurapeMartinez points to nothing that would rebut this presumption. 

In light of the abundant evidence supporting the jury’s guilty verdict, and in 

light of the jury’s proper instruction on the elements of residential burglary, 

Churape-Martinez does not show any prejudice resulting from the asserted 

instance of prosecutorial misconduct. Thus, his claim fails. 

Affirmed. 

WE CONCUR: