State Of Washington v. Latousha Ranee Young ( 2017 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No 74537-9-I
Respondent,
v DIVISION ONE
LATOUSHA RANEE YOUNG, UNPUBLISHED OPINION
Appellant. FILED: April 24, 2017
LEACH, J. — A jury convicted Latousha Young of first degree burglary and
violation of a no-contact order after she broke into her mother’s home and
assaulted her partner. Young appeals her burglary conviction. She challenges
the sufficiency of the evidence to prove that she unlawfully entered or remained in
the home. She also claims the trial court commented on the evidence with its
instruction on unlawful entry. The State presented enough evidence to persuade
a reasonable juror that Young did not have permission to enter or remain in the
home and that she entered in violation of a no-contact order. And the trial court’s
instruction to the jury did not misstate the law or resolve any factual questions. So
we affirm Young’s burglary conviction.
FACTS
In August 2015, Bothell Municipal Court entered a postconviction domestic
violence no-contact order, prohibiting Young from having contact with her partner,
No. 74537-9-1/2
Alexis Stewart. Specifically, the order barred Young from coming within 1,000 feet
of Stewart’s residence, school, workplace, or person.
On October 4, 2015, Stewart had been living in the home of Young’s
mother, Janice Young, for about a month.1 Stewart and her young child slept in
the bedroom of Janice’s partner’s 12-year-old daughter.
About 1:00 a.m. on October 4, Janice awoke to a loud bang. She went to
investigate. She saw Young break a window next to the front door and enter the
home. Young went upstairs to the bedroom where Stewart was staying. Janice
testified that she told Young not to do “this” and warned her that she would call the
police. Janice claims she grabbed Young to prevent her from getting into the room
but then let her go so she could call 911.
Young jumped on Stewart and began hitting her. Janice called 911, and
Young fled outside and hid in the bushes in the backyard where the police found
and arrested her.
The State charged Young with first degree burglary and violation of a no-
contact order.2 After the State presented its evidence, the defense moved the
court to dismiss the burglary charge, asserting that no rational trier of fact could
find that Young unlawfully entered or remained on the premises. The court denied
the motion. It found Janice’s testimony about Young not having permission to
1To avoid confusion, we refer to Janice Young by her first name.
2The State also charged Young with third degree assault, alleging that she
assaulted a law enforcement officer, but this charge was not tried in this
proceeding.
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No. 74537-9-I I 3
break through the window sufficient to raise a question of fact as to whether Young
had permission to enter the home.
The jury convicted Young of both charges. She appeals her burglary
conviction.
DISCUSSION
Dismissal of Burglary Conviction
First, Young claims that the State’s evidence is insufficient as a matter of
law to prove an essential element of first degree burglary.
In reviewing a challenge to the sufficiency of the evidence, we determine
whether a rational trier of fact could find the elements of the crime beyond a
reasonable doubt.3 We view all facts and draw reasonable inferences in the light
most favorable to the State.4
To prove first degree burglary, the State must show that Young entered or
remained unlawfully in a building with the intent to commit a crime, and while in the
building or in immediate flight therefrom, she or another participant in the crime
was armed with a deadly weapon or assaulted any person.5 Young contends that
the State has not shown she entered or remained unlawfully on the property. We
disagree.
~ State v. Green, 94 Wash. 2d 216, 221, 616 P.2d 628 (1980) (quoting Jackson
v. Virginia, 443 U.S. 307, 319, 99S. Ct. 2781, 61 L. Ed. 2d 560 (1979)).
~ State v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068 (1992).
~ RCW 9A.52.020(1).
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No.74537-9-1/4
“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.”6 In
addition, a court order can serve as the basis for the unlawful entry element.7 Here,
the State introduced evidence that Young did not have permission to enter the
premises and that she entered in violation of a no-contact order. A rational trier of
fact could find her entry was unlawful for either reason.
Young claims her entry was not unlawful because Janice gave her
permission to enter. Janice testified that Young was welcome to visit her home
and frequently did. But she also said that Young did not have permission to break
through the window. In addition, Janice restrained Young from entering the
bedroom and called the police. From these facts, a jury could rationally conclude
that she did not have permission either to enter the home or to remain at that time.
Even if Young had Janice’s permission, her entry was unlawful because it
violated a no-contact order. Young asserts that despite the court order, Janice’s
permission gave her license to enter the premises. An individual’s permission
cannot override a court order.8
Young likens this case to State v. Wilson.9 In that case, the jury convicted
Wilson of burglary when he assaulted his girlfriend in their jointly shared residence
in violation of a court order.1° The trial court properly dismissed the burglary
6 Former RCW 9A.52.O1O(5) (2011).
~ State v. Sanchez, 166 Wash. App. 304, 310, 271 P.3d 264 (2012); State v.
Kilponen, 47 Wash. App. 912, 919, 737 P.2d 1024 (1987).
8Sanchez, 166 Wash. App. at 311.
~ 136 Wash. App. 596, 150 P.3d 144 (2007).
10 Wilson, 136 Wash. App. at 602.
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No. 74537-9-I I 5
conviction because, although Wilson’s conduct inside the home was unlawful, his
act of entering and remaining inside the residence was not unlawful because the
order did not exclude him from the residence.11 We distinguish this case from
Wilson because the protective order expressly bars Young from coming within
1,000 feet of Stewart’s residence or person. Thus, unlike Wilson, the no-contact
order contained express provisions that made Young’s entry unlawful.
Young contends that she did not enter the home in violation of the no-
contact order because Stewart was a guest, not a resident, at Janice’s home. We
disagree that as a matter of law, Janice’s home was not Stewart’s residence.
Before October 4, Stewart had been living at Janice’s home for a month. The
record contains no evidence that Stewart lived anywhere else during this month.
Two days after the assault, Stewart signed a lease on a new apartment. A jury
could conclude Janice’s home was Stewart’s residence when the assault occurred.
A jury could also conclude that when she entered the home she violated the
no-contact order by coming within 1,000 feet of Stewart’s person. Drawing all
reasonable inferences in favor of the State, the description of the home indicates
that when Young entered the house, she was within 1,000 feet of Stewart.
In sum, the State provided evidence that Young did not have permission to
enter the premises and that Young violated a no-contact order when she broke
into the home. Either is sufficient for the jury to find unlawful entry. Sufficient
evidence supports the unlawful entry element of the burglary charge.
11 Wilson, 136 Wash. App. at 604-05.
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No. 74537-9-I I 6
Jury instruction
Next, Young claims the court improperly instructed the jury. We review
alleged errors in jury instruction de novo.12
Young challenges the following instruction:
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.
A person who is prohibited by court order from entering a
premise[s] cannot be licensed, invited, or otherwise privileged to so
enter or remain on the premise[s] by an occupant of the premise[s].
Young contends that this instruction misstates the law and is an improper judicial
comment on the evidence. We disagree.
The Washington Constitution forbids judges from commenting on the
evidence presented at trial.13 A jury instruction that essentially resolves a
contested factual issue is an improper comment on the evidence.14 A jury
instruction that does no more than accurately state the law about an issue,
however, is not a comment on the evidence by the trial judge.15
Young first contends that the court’s instruction inaccurately states the law
because it is broader than the court’s holding in State v. Sanchez.16 Sanchez
states “that the consent of a protected person cannot override a court order
excluding a person from the residence.”17 But Young incorrectly asserts that
12 State v. Woods, 143 Wash. 2d 561, 590, 23 P.3d 1046 (2001).
13 WASH. CONST. art. IV, § 16; Woods, 143 Wash. 2d at 590-91.
14 State v. Brush, 183 Wash. 2d 550, 557, 353 P.3d 213 (2015).
15 Woods, 143 Wash. 2d at 591.
16 166 Wash. App. 304, 271 P.3d 264 (2012).
17 Sanchez, 166 Wash. App. at 310.
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No. 74537-9-I I 7
Sanchez limited its holding to the consent of protected persons. Sanchez
repeatedly suggests that the true issue is whether a conflict exists between a court
order and a property possessor and held that “only a judge can alter a court
order.”18 The trial court properly interpreted Sanchez’s holding about a possessor
of the premises to mean that an occupant cannot override a court order.
Young also contends that the instruction improperly resolves an important
factual issue. “[L]egal definitions should not be fashioned out of courts’ findings
regarding legal sufficiency.”19 Young asserts that the instruction prevented the jury
from considering whether and to what extent the house was Stewart’s residence
and, thus, whether the court order barred Young from entering the home. But the
instruction did not define premises or state that the court order barred Young’s
entry. The instructions left these questions to the jury to decide.
Because the instruction accurately stated the law and did not resolve any
factual issues, the trial court did not improperly instruct the jury.
Statement of Additional Grounds
Young also filed a statement of additional grounds for review. Young’s first
additional ground simply restates certain facts of the case and appears to address
the question of Stewart’s residence. We have already resolved this issue and need
not discuss it further.
18 Sanchez, 166 Wash. App. at 305, 311-12.
19 Brush, 183 Wash. 2d at 558.
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No. 74537-9-I I 8
Young’s second additional ground claims that the trial court’s decision to
address a separate judicial issue related to a civil complaint that Young had filed
prejudiced her criminal case. Young does not identify this civil complaint or explain
how she was prejudiced. Her citation to the record does not reference any other
proceeding. Young’s third additional ground appears to dispute the testimony of
an arresting officer and criticize actions of the police but does not identify any
reviewable error. Because these grounds do not inform the court of the “nature
and occurrence of alleged errors” and relate to matters outside the record, we do
not consider them.2°
Legal Financial Obligations
Next, Young challenges for the first time on appeal the court’s decision to
impose $600 in legal financial obligations (LFO5). “Unpreserved LEO errors do
not command review as a matter of right.”21 However, RAP 2.5(a) grants the court
discretion to consider a claim of error raised for the first time in the appellate court.
We exercise our discretion to consider the issue presented and affirm the trial
court’s award of costs.
The trial court imposed a $100 deoxyribonucleic acid (DNA) testing fee and
a $500 victim penalty assessment. Both the DNA fee and victim penalty
20 RAP 10.10(c).
21 State v. Blazina, 182 Wash. 2d 827, 833, 334 P.3d 680 (2015).
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No. 74537-9-I I 9
assessment are mandatory.22 We have repeatedly held that a trial court must
impose mandatory LFOs without considering the defendant’s ability to pay.23
Young asserts that the plain language of RCW 10.01.160(3) requires the
court to consider ability to pay for both discretionary and mandatory fees. The
statute provides,
The court shall not order a defendant to pay costs unless the
defendant is or will be able to pay them. In determining the amount
and method of payment of costs, the court shall take account of the
financial resources of the defendant and the nature of the burden that
payment of costs will impose.[241
But we have previously held that “unlike discretionary legal financial obligations,
the legislature unequivocally requires imposition of the mandatory DNA fee and
the mandatory victim penalty assessment at sentencing without regard to finding
the ability to pay.”25
Young also claims that imposing mandatory LFOs on indigent defendants
violates substantive due process and that to allow mandatory fees to be waived
for civil litigants, but not for criminal defendants, violates equal protection.26
22 RCW 7.68.035(1)(a) (victim assessment); RCW 43.43.7541 (DNA testing
fee); State v. Kuster, 175 Wash. App. 420, 424, 306 P.3d 1022 (2013); State v.
Lundy, 176 Wash. App. 96, 103, 308 P.3d 755 (2013).
23 State v. Shelton, 194 Wash. App. 660, 674-75, 378 P.3d 230 (2016), review
denied, 187 Wash. 2d 1002 (2017); Lundy, 176 Wash. App. at 102.
24 RCW 10.01.160(3).
25 Shelton, 194 Wash. App. at 674-75.
26 See GR 34(a); Jafar v. Webb, 177 Wash. 2d 520, 523, 303 P.3d 1042
(201 3).
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No. 74537-9-I /10
Division Two considered and rejected these same arguments in State v. Mathers.27
We follow Mathers and affirm the LFOs imposed.
Appellate Costs
Finally, Young asks the court to deny the State appellate costs based on
her indigency. We generally award appellate costs to the substantially prevailing
party on review. However, when a trial court makes a finding of indigency, that
finding continues throughout review “unless the commissioner or clerk determines
by a preponderance of the evidence that the offender’s financial circumstances
have significantly improved since the last determination of indigency.”28 Here, the
trial court found Young was indigent. If the State has evidence indicating
significant improvement in Young’s financial circumstances since the trial court’s
finding, it may file a motion for costs with the commissioner.
CONCLUSION
We affirm.
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27193 Wash. App. 913, 924-29, 376 P.3d 1163, review denied, 186 Wash. 2d
1015 (2016).
28 RAP 14.2.
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