State Of Washington, V. Mark Steven Chesler, Jr. ( 2024 )

Filed
Washington State
Court of Appeals
Division Two
February 6, 2024
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 57495-1-II
Respondent,
v.
UNPUBLISHED OPINION
MARK STEVEN CHESLER JR.,
Appellant.
PRICE, J. — Mark S. Chesler Jr. appeals his conviction for residential burglary after a bench
trial. Chesler argues that the State presented insufficient evidence from which a rational trier of
fact could have concluded that he unlawfully entered the back door of his ex-wife’s apartment. As
part of his sufficiency of the evidence challenge, Chesler assigns error to several findings of fact
and conclusions of law.
We disagree and affirm.
FACTS
I. BACKGROUND
On April 12, 2022, C.M. called 911 from her apartment. The call was an open-line
communication, and a male could be heard yelling in the background. After several minutes, C.M.
began speaking to the 911 operator. The 911 operator contacted law enforcement, informing them
that the dispute sounded violent in nature and could be physical.
No. 57495-1-II
Police Officer Michael Barela responded to the residence and spoke to C.M. C.M. told the
officer that Chesler, her ex-husband, was involved and had just left the apartment.1 C.M. and
Chesler did not live together. C.M. showed the officer a broken chair on the floor, a broken back
door, and a wet mud print on the back door. Officer Barela observed that the door trim and the
faceplate (which held the lock bolt when the door was in a closed position) were on the floor.
From these observations, the officer concluded that the door had been kicked open. C.M. told the
officer that the chair was not broken prior to Chesler’s arrival.
C.M. explained that she and Chesler were in a dispute over a bill of sale for a car that
Chesler possessed but did not own. Chesler showed up to get C.M. to sign a bill of sale so that he
could prove his legal ownership of the car. C.M. said Chesler threw her car keys over a fence
during the dispute.
Later that day, law enforcement arrested Chesler at his residence. The State ultimately
charged him with residential burglary and third degree malicious mischief, each with special
allegations of domestic violence.
II. EVIDENCE AT TRIAL
The case proceeded to a bench trial. The State called Officer Barela who testified
consistently with the above facts. The officer also testified that C.M.’s demeanor was similar to
other domestic violence victims that he had interviewed in the past because she was frantic and
afraid. He continued,
[A]s we were talking, she was really hesitant to speak with me at first. She -- from
my conversation with her, I felt she was contemplating the consequences of telling
me information, and she also was looking over her shoulder at the door. She -- it
seemed as if the threat was still present in her mind.
1
C.M. and Chesler married in 2016 and divorced a year later.
2
No. 57495-1-II
....
[Her body language] was very closed off. Her arms were folded. She seemed like
she was taking defensive postures, which I’ve seen numerous times in victims of
domestic violence.
Verbatim Rep. of Proc. (VRP) at 25-26.
Because C.M. said she was afraid of Chesler, the officer gave her suggestions on how to
resecure the door to prevent forced entry and suggested that she go to a relative’s house. C.M.
asked the officer to inform her when Chesler had been taken into custody so that she could feel
safe.
Officer Barela also testified that when Chesler was in custody, he admitted that things had
“gotten out of hand.” VRP at 28.
The State then called C.M. as a witness. She said that Chesler frequently came to her
residence and that the two had an “on again/off again” relationship. VRP at 42. At the time of the
incident, the two may have been “off again.” VRP at 42. C.M. testified that Chesler had a key to
her apartment, they saw each other several times a week, and Chesler did not need to knock when
he visited her. In response to a question about whether Chesler had permission to enter her
residence, C.M. answered, “He didn’t not have my permission.” VRP at 35.
She conceded it was possible that she told Chesler to come over to her residence on the day
of the dispute to sign a bill of sale. When C.M. was asked whether Chesler called her first to get
her permission to come over to her apartment, the following exchange took place:
[Prosecutor]: And before he came over that day, he didn’t call first and get your
permission, did he?
[C.M.]: We had been arguing back and forth.
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No. 57495-1-II
[Prosecutor]: So[,] is that no?
[C.M.]: Maybe.
VRP at 49.
She also explained that the back door had been broken for several months at the time of
the incident. But she acknowledged that the faceplate broke off and fell on the floor when Chesler
entered the house. And she testified that Chesler took the keys to her car and threw them into a
field.
C.M. admitted that when Officer Barela asked her if she wanted a protection order, she
said yes. But she also claimed that she had exaggerated things to the investigating officer and let
her emotions get the better of her. C.M. said that she did not want Chesler to get in trouble but
also said she did not want to see him get in trouble for something that he did not do.
Chesler testified in his own defense. He stated that he had a key to C.M.’s apartment that
worked for the front door but not the back door because the back door would not lock properly
and was broken. He denied that the muddy foot print on the door was from the day of the dispute
but claimed it was, instead, from a few days earlier when one of them used their foot to open the
back door to bring in groceries. Chesler said he went over to C.M.’s residence because C.M.
invited him over to her apartment to pick up a bill of sale and she did not have it ready for him
when he arrived.
Chesler admitted that this made him angry and that he called C.M. a “f[*]cking idiot.”
VRP at 58. He denied throwing her keys during the incident and suggested he threw them on a
different day.
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No. 57495-1-II
Photographs of the faceplate, door trim, back door, mud print, and broken chair were
admitted into evidence along with the 911 tape.
III. VERDICT AND SENTENCING
The trial court found Chesler guilty of all charged counts.
The trial court gave an oral ruling. As to the residential burglary count (which requires
both an intent to commit a crime and an unlawful entry), the trial court stated there was no question
Chesler had an intent to commit a crime against a person or property therein because Chesler
admitted to breaking the chair upon entry and depriving C.M. of her keys.
But the trial court said it was somewhat struggling with the element of unlawful entry.
Nonetheless, the trial court stated that it was making a reasonable inference that Chesler was not
invited in the house in the manner that he entered. The trial court explained,
It’s not reasonable to assume that somebody allows you to kick their back door in.
I don’t think there’s any question that the back door was kicked in. I know that
[C.M.] stated the door had previously been damaged. That doesn’t change the fact
that it was kicked in on the day in question.
....
She pointed out to the officer that the door was broken, that the doorjamb was
broken, that the faceplate was broken and on the floor. The position of the faceplate
on the floor clearly indicated that it had to basically fly off rather than just drop. . . .
And at the time of the incident, [C.M.] had pointed out the damage to the door,
which indicates that it wasn’t previously that way before the officer got there. She
pointed out the broken chair, which Mr. Chesler admitted to breaking.
VRP at 75-76.
In arriving at its decision, the trial court explicitly said it did not find Chesler credible and
did not find C.M. “all that credible.” VRP at 75. However, the trial court explained that it found
the officer to be credible and heavily relied on his testimony.
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No. 57495-1-II
Pointing to the officer’s testimony about how C.M.’s demeanor was consistent with other
domestic violence victims, the trial court found that C.M. was not expecting Chesler and did not
invite him to enter the way he did, by kicking in the door.
Moreover, the trial court explained that Chesler entered through the back door even though
he had a key and C.M. called 911 upon his arrival, further suggesting that C.M. did not expect
him. The trial court stated,
And the reasons I look at it that way is, one, he had a key to the front door. Instead
of using the key to the front door, he kicked in the back door. It’s evident that he
kicked it in based on the damage, based on [C.M.] indicating to the officer that it
wasn’t there prior to . . . that incident.
There was a wet footprint on the back of the door. The officer examined that. It
was wet. It was fresh, so that does not correlate with Mr. Chesler’s testimony that
the footprint was made a few days prior. It was clear [C.M.] did not expect him,
because she called 911. If you are expected in someone’s home, you don’t call --
the homeowner does not call 911.
VRP at 76-77.
Regardless of whether C.M. had previously given Chesler permission to enter the house,
the trial court ultimately decided that Chesler did not have permission on the day of the dispute:
Whether or not Mr. Chesler was previously given rights to enter the house, he
clearly was not on the day in question or in the manner in question based on her
feeling fearful enough [to] call 911. She also stated to the officer that she wanted
a protection order. That again indicates to the [c]ourt that she was afraid,
intimidated, and obviously did not invite Mr. Chesler into the home in that manner.
VRP at 77 (emphasis added).
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No. 57495-1-II
At the sentencing hearing, the trial court noted that Chesler had “one of the most atrocious
criminal histories involving domestic violence [it had] ever seen.”2 VRP at 95. The trial court
sentenced Chesler to 84 months of total confinement, a term within the standard sentencing range.
IV. TRIAL COURT’S WRITTEN FINDINGS OF FACT AND CONCLUSIONS OF LAW
Several months after issuing its oral ruling and sentencing the defendant, the trial court
entered written findings of fact and conclusions of law. The trial court’s written findings of fact
stated in relevant part:
1.1. On 4-12-2022, the defendant, Mark Steven Chesler, Jr., intentionally kicked
in the door to the apartment occupied by [C.M.]. The apartment was located in
Lewis County, Washington. He then entered the apartment.
1.2. By kicking in the door, the defendant broke the lock faceplate off the door
jam, and broke off the door trim holding the lock faceplate in place.
1.3. After the incident, when Officer [Barela] (Centralia PD) arrived, [C.M.]
showed him the faceplate and door trim on the floor, in front of the door.
1.4. Officer [Barela] noticed a shoe print on the door where Chesler had kicked it.
1.5. The position of the faceplate and door trim were such that it was obvious the
two items flew into the room from the force of the kick rather than just dropped out
of the door when it was opened.
1.6. Chesler and [C.M.] were former intimate partners.
1.7. Prior to 04-12-2022, Chesler and [C.M.] had a relationship whereby Chesler
was free to come and go from [C.M.’s] apartment. However, the [c]ourt finds that
Chesler was never invited into [C.M.’s] apartment in the violent manner in which
he entered on this occasion.
1.8. [C.M.] was not expecting Chesler to visit on 4-12-2022, and he was not invited
into [C.M.’s] home on that date.
1.9. When Chesler entered [C.M.’s] apartment, he not only broke the door trim, he
knowingly broke a chair that was in the way of the door upon his entry. The value
of the chair was less than $750.
Clerk’s Papers (CP) at 33-34.
2
Chesler’s judgment and sentence showed that he had six prior domestic violence related
convictions and a second degree theft conviction.
7
No. 57495-1-II
As part of its conclusions of law, the trial court found Chesler’s entry of C.M.’s apartment
to be unlawful and found Chesler guilty of residential burglary and third degree malicious
mischief. The conclusions of law related to the residential burglary count stated:
2.2. The [c]ourt finds the defendant’s entry of [C.M.’s] apartment on 4-12-202[2]
to be unlawful.
2.3. The [c]ourt finds the defendant guilty of Residential Burglary, as charged in
Count 1 of the original information.
CP at 35.
Chesler appeals.3
ANALYSIS
Chesler argues that insufficient evidence supports his conviction for residential burglary.
As part of his sufficiency of the evidence challenge, Chesler argues that the trial court erred in
making related findings of fact and conclusions of law.
I. LEGAL PRINCIPLES
We review challenges to the sufficiency of the evidence de novo. State v. Rich, 184 Wn.2d
897, 903, 365 P.3d 746 (2016). We view the evidence in the light most favorable to the State and
“determine whether 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). “Specifically,
following a bench trial, appellate review is limited to determining whether substantial evidence
supports the findings of fact and, if so, whether the findings support the conclusions of law.” Id.
at 105-06. “ ‘Substantial evidence’ is evidence sufficient to persuade a fair-minded person of the
3
Chesler solely appeals his conviction for residential burglary, he does not appeal his third degree
malicious mischief conviction.
8
No. 57495-1-II
truth of the asserted premise.” Id. at 106 (quoting State v. Stevenson, 128 Wn. App. 179, 193,
114 P.3d 699 (2005)). Unchallenged findings of fact are verities on appeal. See id.A sufficiency of the evidence claim admits the truth of the State’s evidence and all
reasonable inferences that can be drawn from that evidence. State v. Salinas, 119 Wn.2d 192, 201,
829 P.2d 1068 (1992). All such inferences “must be drawn in favor of the State and interpreted
most strongly against the defendant.” Id. Direct and circumstantial evidence are equally reliable.
State v. Miller, 179 Wn. App. 91, 105, 316 P.3d 1143 (2014). And we defer to the trier of fact on
issues of conflicting testimony, witness credibility, and the persuasiveness of evidence. State v.
Ague-Masters, 138 Wn. App. 86, 102, 156 P.3d 265 (2007).
“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.”
RCW 9A.52.025(1). “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(2).
II. APPLICATION
Chesler’s challenge focuses on the unlawful entry element of residential burglary. He
essentially argues that the evidence of unlawful entry is insufficient because he had permission to
enter C.M.’s residence. And if he had permission, then his entry could not have been unlawful.
Chesler acknowledges that it is unreasonable to assume a person can lawfully kick in
somebody’s door, but asserts that this type of behavior constitutes third degree malicious mischief,
not residential burglary. By ruling otherwise, the trial court “confuse[d]” permission to enter with
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No. 57495-1-II
method of entry. Amended Br. of Appellant at 16. Chesler supports this argument by specifically
challenging the trial court’s findings of fact 1.7 and 1.8, and conclusions of law 2.2 and 2.3.4
A. FINDINGS OF FACT 1.7 AND 1.8
Chesler’s argument principally relies on his challenge to findings of fact 1.7 and 1.8.
Finding of fact 1.7 states:
Prior to 4-12-2022, Chesler and [C.M.] had a relationship whereby Chesler was free
to come and go from [C.M.’s] apartment. However, the [c]ourt finds that Chesler
was never invited into [C.M.’s] apartment in the violent manner in which he entered
on this occasion.
CP at 34. And finding of fact 1.8 states:
[C.M.] was not expecting Chesler to visit on 4-12-2022, and he was not invited into
[C.M.’s] home on that date.
CP at 34.5 Read together, these two findings make clear that the trial court found Chesler did not
have permission to enter C.M.’s residence on April 12, 2022.6
4
Chesler also assigns error to findings of fact 1.2 and 1.9, which pertain to the door trim and lock
faceplate being broken when he kicked in the door. Chesler suggests that, depending on how these
findings are interpreted, they could be inconsistent with the testimony at trial that the door trim
and lock faceplate were previously broken and were only “displaced” when the door was kicked
in. Amended Br. of Appellant at 19.
However, even if these two findings are somewhat ambiguous about whether the faceplate and
door trim were previously broken or merely displaced when the door was kicked in, neither party
argues that this potential ambiguity is relevant to Chesler’s fundamental sufficiency of the
evidence challenge; that is, whether the trial court confused permission to enter with the manner
of entry. Thus, we will not further address these findings.
5
Because Chesler only assigns error to four findings of fact, the remaining findings are verities.
See Homan, 181 Wn.2d at 106.
6
As noted above, Chesler argues that the trial court confused unlawful entry with manner of entry.
It is true that the language of finding of fact 1.7 is arguably ambiguous on this point because it
could be construed as tying unlawful entry to the manner of entry (“the [c]ourt finds that Chesler
was never invited into [C.M.’s] apartment in the violent manner in which he entered on this
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No. 57495-1-II
Chesler argues that these findings are erroneous because they are inconsistent with the
testimony that he had ongoing permission to enter C.M.’s home. Chesler points to his testimony
that he was specifically invited that day and C.M.’s testimony that it was possible that she had
invited him over for the purpose of completing the bill of sale. And even if he did not have an
express invitation to enter that day, Chesler says his testimony supports his position that C.M. had
given him permission to come and go from her apartment whenever he wished.
Chesler’s challenge to these findings is unpersuasive. Findings of fact 1.7 and 1.8 say that
even if permission had been granted in the past, Chesler did not have permission to enter C.M.’s
house on April 12, 2022. Substantial evidence supports these findings.
It is true that both Chesler and C.M. testified that Chesler had previously enjoyed ongoing
permission to be at the residence. And neither said directly that Chesler did not have permission
on the day of the dispute. In fact, Chesler testified that C.M. specifically invited him to the
residence on that day. And when asked about Chesler’s permission to enter her residence, C.M.
stated, “He didn’t not have my permission.” VRP at 35 (emphasis added). She was also
noncommittal when directly asked whether Chesler called first to get her permission to come over
to the apartment.
But the trial court, as the trier of fact, was free to make credibility assessments of this
testimony. And the trial court expressed that it did not find Chesler credible and C.M. “all that
occasion”). CP at 34. However, any ambiguity is resolved by the clarity of finding of fact 1.8
(“[C.M.] was not expecting Chesler to visit on 4-12-2022, and he was not invited into [C.M.’s]
home on that date.”). CP at 34 (emphasis added).
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No. 57495-1-II
credible.” VRP at 75. Instead, the trial court relied heavily on the officer’s testimony, finding him
credible.7 We defer to these credibility determinations. Ague-Masters, 138 Wn. App. at 102.
The officer’s testimony, together with the physical evidence, supports the trial court’s
finding that Chesler was not invited (and thus did not have permission) to enter on April 12. This
evidence suggests Chesler forced his way into the residence through the back door even though he
had a key to enter the front door. And critically, according to the officer, C.M. displayed a
demeanor consistent with a typical domestic violence victim—she called 911 and appeared frantic
and afraid. As the officer described, “[S]he also was looking over her shoulder at the door.
She -- it seemed as if the threat was still present in her mind.” VRP at 25. And C.M. told the
officer she wanted a protection order.
Regardless of whether Chesler previously had a general permission to come and go from
C.M.’s apartment, this evidence supports a reasonable inference that Chesler was not invited into
C.M.’s residence on the day of the incident. See State v. Schneider, 36 Wn. App. 237, 241,
673 P.2d 200 (1983) (holding defendant’s entry was unlawful based in part on the method of entry,
breaking the door latch). See also State v. McDaniels, 39 Wn. App. 236, 240, 692 P.2d 894 (1984)
(unlawful entry may be proved by circumstantial evidence). Construing the evidence in favor of
the State, a rational trier of fact could reasonably find beyond a reasonable doubt that Chesler’s
entry that day was unlawful.
7
C.M. testified at trial that on the day of the incident she exaggerated things to the officer and let
her emotions get the better of her. And she admitted that she did not want to see Chesler get in
trouble. The trial court may have concluded that C.M.’s testimony at trial was skewed to protect
Chesler.
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No. 57495-1-II
Accordingly, the trial court’s findings of fact 1.7 and 1.8 are supported by substantial
evidence.
B. CONCLUSIONS OF LAW 2.2 AND 2.3
Now that we have determined that these challenged findings of fact are supported by
substantial evidence, it follows that these findings support the trial court’s conclusions of law that
determined the elements of residential burglary were met. Again, Chesler challenges conclusions
of law 2.2 and 2.3, which read:
2.2. The [c]ourt finds the defendant’s entry of C.M.’s apartment on 4-12-202[2] to
be unlawful.
2.3. The [c]ourt finds the defendant guilty of Residential Burglary, as charged in
Count 1 of the original information.
CP at 35.
Chesler’s sufficiency of the evidence challenge rises or falls on the assumption that he had
permission to enter C.M.’s residence (but just not in the method of entry he chose). But the trial
court did not make that finding—as discussed above, the court found that Chesler did not have
permission to enter on April 12, 2022. And, as shown above, the findings are supported by
substantial evidence. Without an invitation or permission, Chesler’s entry into C.M.’s residence
was clearly unlawful, and Chesler makes no argument otherwise. See RCW 9A.52.010(2) (“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.”). Simply put, the trial court’s findings of
fact support its conclusions of law that Chesler was guilty of residential burglary.8
8
We need not necessarily agree with the verdict to find that sufficient evidence supports Chesler’s
conviction. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (“This inquiry does not
require the reviewing court to determine whether it believes the evidence at trial established guilt
beyond a reasonable doubt.”).
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No. 57495-1-II
CONCLUSION
Viewing the evidence and all reasonable inferences in the light most favorable to the State,
we hold that there was sufficient evidence for a rational trier of fact to find beyond a reasonable
doubt that Chesler’s entry into C.M.’s residence was unlawful. 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.
PRICE, J.
We concur:
GLASGOW, C.J.
LEE, J.
14