State of Washington v. Emanuel Lopez Casillas ( 2018 )

FILED
DECEMBER 13, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 35493-8-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
EMANUEL LOPEZ CASILLAS, )
)
Appellant. )
PENNELL, J. — Emanuel Lopez Casillas appeals his juvenile adjudication for
fourth degree assault, domestic violence. We affirm.
FACTS
The State charged Emanuel Casillas with fourth degree assault, domestic violence,
based on an altercation with his on-again-off-again girlfriend, Veronica Herrera. At the
time of the incident, Ms. Herrera was 29 years old and Mr. Casillas was 17. Ms. Herrera
testified that she stood 5′7″ tall and weighed approximately 250 pounds.
No. 35493-8-III
State v. Casillas
The incident between Ms. Herrera and Mr. Casillas started with a verbal argument.
Ms. Herrera had confronted Mr. Casillas about why he was using his cellular telephone
in the shower. Ms. Herrera was angry and upset because she was concerned Mr. Casillas
was communicating with other women. After some back and forth argument, Ms.
Herrera went to the living room in an attempt to cool down. Mr. Casillas followed
Ms. Herrera and sat next to her. Ms. Herrera remained angry and was unable to calm
down. She stood up and Mr. Casillas also got up. Then Ms. Herrera pushed Mr. Casillas
“pretty hard.” Report of Proceedings (RP) (Aug. 3, 2017) at 10. Mr. Casillas responded
by striking Ms. Herrera in the face. Mr. Casillas hit Ms. Herrera’s face so hard that when
police officers arrived, an officer observed red marks or welts on Ms. Herrera’s face. The
officer stated Ms. Herrera appeared visibly upset, red faced, was shaking a bit, and the red
marks or welts on her face appeared to have been done with fingers. The officer observed
Mr. Casillas did not have any injuries.
A fact finding hearing took place two months and one day after the altercation. At
the hearing, Ms. Herrera suggested she was at fault for the altercation and characterized
Mr. Casillas’s conduct as defensive. The State attempted to impeach Ms. Herrera with
her prior inconsistent written statement. The defense objected. In arguing for the ability
to pursue questioning, the State acknowledged Ms. Herrera did not mention pushing
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Mr. Casillas in her written statement. The court sustained Mr. Casillas’s objection to this
impeachment testimony.
After the State rested, Mr. Casillas moved to dismiss on the grounds that, based
on Ms. Herrera’s testimony, there was insufficient evidence to support a finding that
Mr. Casillas did not act in self-defense. The juvenile court disagreed and denied his
motion. Then, after closing arguments were made, the juvenile court made its oral
findings and ruling:
THE COURT: I’m looking—Ms. Herrera may in fact be a woman
of more than average size. I do not find her obese in any—at all. But it is
plain to the court that [Mr. Casillas] is very much physically superior to her.
She pushed him. That might have been an assault. But he slapped
her hard enough to cause welts on her face. And that is abominable. To
slap a person—who is physically inferior to you hard enough in the face to
cause welts is very clearly a response that is not reasonable and appropriate
to the circumstances.
I find [Mr. Casillas] guilty of simple assault domestic violence.
RP (Aug. 3, 2017) at 25-26. In response, Mr. Casillas’s attorney stated, “I know the
court’s rationale there was the size of my client. I don’t know if the court’s taking
judicial notice of that because those facts were not in evidence.” Id. at 26. In response,
the court provided that “[t]he factfinder has the ability and may rely on the defendant’s
size, presence and demeanor, and I did that.” Id.
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State v. Casillas
That same day, the juvenile court entered an order on adjudication finding
Mr. Casillas guilty of fourth degree assault, domestic violence. Less than a week later,
the court entered an order on disposition and sentenced Mr. Casillas to four days in jail.
Mr. Casillas filed his notice of appeal on August 7, 2017. When Mr. Casillas filed
his opening brief on appeal, on February 9, 2018, the record did not contain any written
findings of fact or conclusions of law. However, on March 2, the State served a summons
on Mr. Casillas to appear at a hearing in the trial court for presentment of findings and
conclusions. On March 12, over Mr. Casillas’s objection, the juvenile court entered
findings of fact and conclusions of law.
ANALYSIS
Delayed entry of written findings of fact & conclusions of law
In his opening brief, Mr. Casillas argued the juvenile court had not entered the
required findings of fact and conclusions of law pursuant to JuCR 7.11(d). Subsequent
to the filing of the opening brief, this court accepted the State’s submission of late
findings of fact and conclusions of law. Mr. Casillas now contends the findings and
conclusions have been improperly tailored to address the arguments he raised in his
opening brief.
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A court’s delayed entry of findings of fact and conclusions of law is not ordinarily
grounds for reversal. State v. Head, 136 Wn.2d 619, 624-25, 964 P.2d 1187 (1998)
(applying CrR 6.1(d)); State v. Lopez, 105 Wn. App. 688, 693, 20 P.3d 978 (2001).
A possible exception exists in the context of prejudice. Delayed findings and conclusions
might prejudice a defendant if they are tailored to address the issues on appeal. Head,
136 Wn.2d at 624-25; Lopez, 105 Wn. App. at 693. The defendant bears the burden of
proving prejudice. Head, 136 Wn.2d at 625.
Mr. Casillas has failed to show improper tailoring or any other form of prejudice.
The juvenile court’s findings of fact and conclusions of law come directly from testimony
presented at the fact finding hearing and the court’s oral findings and conclusions at the
end of the hearing. For example, findings of fact 11 and 12, “After observing [Mr.
Casillas] and the victim’s relative sizes, the Court finds [Mr. Casillas] to be very much
physically superior to the victim,” and “[Mr. Casillas] slapped the victim hard enough
to cause welts on her face, which was abominable, not reasonable or appropriate response
to the circumstances,” are almost directly verbatim from the court’s oral findings and
ruling. Clerk’s Papers (CP) at 70; cf. RP (Aug. 3, 2017) at 26. Although some of the
court’s findings and conclusions relate to issues raised by Mr. Casillas on appeal, this
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does not sway our analysis. Mr. Casillas’s arguments on appeal were preserved at his fact
finding hearing. It was therefore appropriate for the court to address those issues.
The juvenile court’s delay in entering written findings of fact and conclusions of
law is not a basis for reversing Mr. Casillas’s adjudication.
Self-defense
It is a defense to an intentional assault that the defendant was acting in self-
defense. Under RCW 9A.16.020(3), the use of force on another person “is not unlawful
. . . [w]henever used by a party about to be injured, . . . in preventing or attempting to
prevent an offense against his or her person, . . . [provided that] the force is not more than
is necessary.” Once self-defense has been properly raised, the State is obliged to prove
the absence of self-defense beyond a reasonable doubt in order to sustain a finding of
guilt. State v. Miller, 89 Wn. App. 364, 367-68, 949 P.2d 821 (1997).
Self-defense involves objective and subjective components. State v. Walden,
131 Wn.2d 469, 474, 932 P.2d 1237 (1997). As to the subjective component, the
defendant must have actually believed himself or herself to be in danger of imminent
harm. Id. In regard to the objective component, there are two separate requirements.
First, the defendant’s fear of harm must have been reasonable. Id. Second, the
defendant’s use of force must have been not greater than reasonably necessary.
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RCW 9A.16.020(3), .010(1). The State can disprove self-defense by establishing an
absence of any of the foregoing components.
Here, the State presented sufficient evidence to prove Mr. Casillas was not
engaged in self-defense. Specifically, the testimony from Ms. Herrera and the police
officer indicated Mr. Casillas used more force than necessary when he struck Ms. Herrera
in the face in response to her act of pushing. Given these circumstances, we disagree
with Mr. Casillas’s challenge to the juvenile court’s finding with respect to self-defense.
Failure to offer witness’s sworn statement as an exhibit
Mr. Casillas argues the juvenile court erred when it allowed the State to recount a
portion of what Ms. Herrera wrote in the written statement she provided to the police
after Mr. Casillas was arrested. Because Ms. Herrera’s written statement was not offered
as an exhibit or admitted into evidence, Mr. Casillas argues the juvenile court should not
have considered it.
Judges have wide discretion when determining the admissibility of evidence.
State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001). In a bench trial, we presume
the judge followed the law and considered evidence solely for proper purposes. See State
v. Read, 147 Wn.2d 238, 245, 53 P.3d 26 (2002). A defendant rebuts this “presumption
by showing the verdict is not supported by sufficient admissible evidence, or the trial
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court relied on inadmissible evidence to make essential findings that it otherwise would
not have made.” Id. at 245-46.
Mr. Casillas fails to show the juvenile court relied on inadmissible evidence.
The court found Ms. Herrera was the initial aggressor when she pushed Mr. Casillas. It
is therefore apparent the court was not influenced by the State’s proffer that Ms. Herrera
had not mentioned the pushing incident in her prior statement to police. Mr. Casillas
has not met his burden of showing error.
Judicial notice of defendant’s physical attributes
Mr. Casillas argues the juvenile court erroneously took judicial notice of his
physical size, and, because there was no evidence in the record documenting his physical
attributes, this judicial notice impermissibly led the court to overlook his self-defense
claim. We disagree with this contention.
It is well established that a fact finder can consider a defendant’s physical
appearance in court as part of its assessment of guilt or innocence. The most familiar
example is a witness’s in-court identification of the defendant as the individual involved
in a crime. But there are other common scenarios. For example, the prosecutor may
point to a change in the defendant’s appearance between the time of offense and trial as
evidence of consciousness of guilt. United States v. Jackson, 476 F.2d 249, 253 (7th Cir.
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No. 35493-8-III
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1973). A fact finder may also assess a defendant’s appearance when necessary to
determine the defendant’s age or identity. State v. Magana, 197 Wn. App. 189, 198,
389 P.3d 654 (2016) (The jury in a statutory rape case could assess the defendant’s
physical appearance as evidence of age differential.); Barnett v. State, 488 So.2d 24(Ala. Crim. App. 1986) (“‘It is uniformly the rule that a defendant’s physical appearance
may be considered by the jury in determining his or her age.’”) (quoting State v.
Lauritsen, 199 Neb. 816, 819, 261 N.W.2d 755 (1978)); State v. Brezillac, 19 Wn. App.
11, 13-14, 573 P.2d 1343 (1978) (The trial court could compare the defendant’s
appearance in court to photos contained in prison records.).
Here, the juvenile court properly considered Mr. Casillas’s physical attributes
when determining whether he utilized excessive force against Ms. Herrera. Only two
months had passed between the altercation and the fact finding hearing. It was therefore
reasonable for the court to infer that the size difference between Mr. Casillas and Ms.
Herrera at the time of the hearing would have been very nearly the same on the date of
the altercation. Although it would have been preferable for the court to provide more
detail about Mr. Casillas’s physical appearance, the court’s finding that Mr. Casillas
was “very much physically superior to” Ms. Herrera was sufficient to permit meaningful
appellate review. CP at 70. Cf. State v. Payne, 45 Wn. App. 528, 531, 726 P.2d 9979
No. 35493-8-111
State v. Casillas
(1986) (It was error for the trial court to find the victim particularly vulnerable to the
crime due to her size when record did not contain any information about the victim's size,
thereby thwarting appellate review).
CONCLUSION
The orders on adjudication and disposition are 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 2.06.040.
Pennell, J.
WE CONCUR:
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Lawrence-Berrey, C.J.
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