## FILED 

## COURT OFAPP AL



# I 2014 HAY - 6 

### 6: 3 I 

# STATE OF tVASHtNSTOU

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

v. JESUS OLIVERA, JR., DIVISION II
Respondent,

Appellant. No. 44746 -1 - II

UNPUBLISHED OPINION
JOHANSON, A.C.J. — 

### Ajury found Jesus Olivera,Jr. guilty offirst 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 ofonewing andAngela's room was two doors down. There were no othermotel 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 avehicle 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 

### andwandered intheparking lotwhile 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 

### thatcould cause an injury. Olivera blurted outthathe hadtaken a lot ofmeth. 

### Olivera testified that as he drove near thejetty 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 andthoughtthe cries camefromJon's room. Oliveradid notknockonthedoororsummon the night manager. Rather, Olivera kicked in the door to see whatwas going on. Olivera claims 2No. 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 forhelp.

The State charged Olivera with first degree 

### burglary and fourth degree assault. 

### Ajury found Olivera guilty on each charge.

## 2 Oliveraappeals hisburglaryconviction. 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 intentto commit a crime, we affirm Olivera's conviction forfirst 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 ofthe 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. 3No. 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 offact on issues ofconflicting testimony, witness credibility, and the persuasiveness ofthe evidence. State v. Thomas, 150 Wn.2d 821, 874 - 75, 83 P.3d 970 (2004). II. DISCUSSION The crime offirst degree 

### burglary is codified 

### by RCW 9A.52.020( 1), which provides, 

### A person is guilty ofburglary inthe first degree if,with intentto 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 aperson. To clarifyproofofthe second element,the legislature adopted the following inference of intent: 

### In anyprosecutionforburglary, anypersonwho enters orremains 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 indicates that the inference is merely permissive instead of mandatory.3 

### Here, the jury was instructed as follows:

3 

## Mandatory presumptions create problems ofconstitutional scope because oftheirpotential for circumventing the State' s burden to prove all elements beyond a reasonable doubt. State v. Brunson, 128 Wn.2d 98, 105, 905 P.2d 346 ( 1995). 4No. 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 foryou to determine whatweight, ifany, such inference isto be given. Clerk' s Papers at 47. 

### The instruction here clearly indicated that the inference is not mandatory. 

### Therefore, ifthejury determined that Olivera entered or remained inthe motel room unlawfully, they could 

### properly infer that he did so with the intent to commit a crime therein.4 But an 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 apermissive inference is onlypart ofthe State's proofsupporting an element and notthe sole and sufficient" proof ofthat element, due process is not offended ifthe 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). 

### Butwhenthe inference isthe only proofofintentto commit a crime, the State must prove thatthe 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 proofof intent, so we assume the State must prove intent beyond a reasonable doubt. 5No. 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, norAngela 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 ofthe events was not believable. An essential function of the fact finder is to discount theories which it determines unreasonable because the finder offact is the sole and exclusivejudge ofthe evidence, the weight to be given 

### thereto, andthe credibility ofwitnesses. 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 notto reweigh the evidence and substitute ourjudgment for that ofthe

### 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 

## quoting Tot v. United States, 319 U.S. 463, 467, 63 S. Ct. 1241, 87 L. Ed. 1519 ( 1943)). Here, 

## thejurywas instructedthat itmay inferthat Olivera intended to commit acrimewhen 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 inthe ensuing struggle. Viewingthe evidence in a light mostfavorabletothe State, a rational trier offact could have found the essential elements ofthe first degree burglary

6No. 44746 -1 - II

beyond a reasonable doubt. Drum, 168 Wn.2d at 34 - 35. The evidence was sufficient to support Olivera' s conviction.5

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 ajury instruction which requires de novo review on appeal. 123 Wn.

### App. 1, 4, 94 P.3d 323 ( 2004). 

### Here, Olivera challenges the sufficiency ofthe State' s evidence which requires us to consider the evidence in a light most favorable to the prosecution. Wentz, 149 Wn.2d at 347. 7