No. 47691-2-I.The Court of Appeals of Washington, Division One.
Filed: February 11, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County Docket No: 008030004 Judgment or order under review Date filed: 11/08/2000.
Counsel for Appellant(s), King County Public Defender, Nielsen Broman
Koch Pllc, 810 Third Avenue, 320 Central Building, Seattle, WA 98104.
Dana M. Nelson, Nielsen Broman Koch Pllc, Ste 320 Central Bldg, 810 3rd Ave, Seattle, WA 98104.
Counsel for Respondent(s), Cindi S. Port, P.O. Box 15857, 516 3rd Avenue, Seattle, WA 98115-0857.
C. KENNETH GROSSE, J.
A juvenile does not have an unlimited right to be in the family home. The act of breaking a window to gain entry will support the inference that it was done with malicious intent where there is no evidence of a contrary intent. The juvenile’s mother set reasonable rules for her son’s behavior, particularly that he leave on time for school, and provided him with shelter, food, clothing, and some money. There was no evidence of a need on the part of the juvenile to reenter the home on the morning of the incident. Thus, the inference that arises from the act of breaking the window remains unrebutted. Moreover, there is no evidence in the record to support a defense of necessity. The conviction for malicious mischief is affirmed.
FACTS
Before April 3, 2000, tensions existed in the relationship between Ms. W. and her 16-year-old son C.H.W.[1] Mrs. W. established and imposed certain disciplinary rules for her house. One of these rules included that C.H.W. was not allowed in the house while she was at work. Ms. W. usually went to work around 6 a.m. and returned shortly before 6 p.m. C.H.W. was fully informed of the rules and did not have a key to the house.
Even though house rules had been set, Ms. W. testified that C.H.W. refused to follow them. He chose to get up, take a shower, eat breakfast, brush his teeth, and then leave the house to catch a bus between 7:30 and 8 a.m. for his high school classes beginning at 7:45 a.m. Thus, he was often late for school. Ms. W. stated that it was necessary for C.H.W. to catch the bus before 7 a.m. to make it to school on time.
Mrs. W. testified that shortly before the incident of April 3, 2000, C.H.W. was involved in a `drinking episode.’ On the evening of April 2, 2000, Ms. W. asked five adult males from her parenting support group to come to her home early the next morning to assist her in getting her son out of the house and to school before she left for work. That morning, at approximately 5:45 a.m. she met with the men and proceeded to go downstairs to C.H.W.’s bedroom in an attempt to roust him out of bed and get him on his way to school. Ms. W. testified that once she accompanied the men to her son’s room she returned upstairs. Ms. W. asked the men not to touch C.H.W. After first feigning sleep, C.H.W. eventually spoke to the men.
C.H.W. testified that he remembered that the men threatened to pour ice water on him if he did not get up. However, he could not remember if any of the men had water actually in hand. The men turned their backs to give C.H.W. privacy so he could dress for school. He got out of bed, walked upstairs, grabbed a sack lunch, some money left for him by his mother, and left the house. One of the men in the support group testified that C.H.W. took approximately 10 minutes to dress and gather his books and belongings before heading out of the house to go to school. When C.H.W. left the house at approximately 6:05 to 6:10 a.m. he was fully dressed, had his jacket, his backpack, a lunch, and a minimum of $3 to $5 in cash. Mrs. W. testified that she believed her son would go to a nearby McDonald’s restaurant to wait for the bus. C.H.W. testified that he usually went to the McDonald’s or to the house of a friend either before or after school.
The men left the house shortly thereafter, and Ms. W. left the house about five minutes after that. As she drove away she saw her son standing next to the house. Later that evening Ms. W. noticed a basement window was broken and that there was glass on the floor of the room inside the house.[2]
When cross-examined, C.H.W. admitted to breaking the window after his mother left the house. During his testimony, C.H.W. failed to offer any reason as to why he broke the window. Defense counsel argued it was to reenter the house to shower, eat breakfast, brush his teeth, and use the bathroom, but C.H.W. did not so testify. This argument was made to support an affirmative defense of necessity in regard to the malicious mischief charge.
The juvenile court found C.H.W. guilty of third degree malicious mischief. The court found the State rebutted the defense of necessity, proving that C.H.W. was properly clothed, had money for the bus, food (at least an apple and a sandwich), and had a minimum of another $1.50 to get him through the day until his mother came home. More importantly, the court noted that it was established that C.H.W. had been told that he was expected to be up and out of the house by 6 a.m. The court stated that the doctrine of necessity indicates a person cannot use the doctrine if it is that person who has made the crime necessary. C.H.W. knew the rules and could have been up early enough to allow himself to do all the things he now claims he needed to do.
At the disposition hearing, the trial court sentenced C.H.W. to eight hours of service on a work crew, and ordered restitution of $10 for the broken window and a victim penalty assessment of $100. C.H.W. appeals.
DISCUSSION
RCW 9A.48.090(1)(a) provides that a person is guilty of malicious mischief in the third degree if he knowingly and maliciously causes physical damage to the property of another, under circumstances not amounting to malicious mischief in the first or second degree.[3] Here the question is whether the State proved that C.H.W. acted with malice when he caused the physical damage to his mother’s home.[4] C.H.W. argues there was insufficient evidence to establish that he broke the window with the requisite malicious intent. Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find guilt beyond a reasonable doubt.[5]
By claiming that the evidence is insufficient, C.H.W. admits the truth of the State’s evidence and all inferences that can reasonably be drawn therefrom.[6] Here, drawing all reasonable inferences in favor of the State, a review of the hearing transcripts provides sufficient evidence to infer that C.H.W.’s act of breaking the window was done with evil intent, wish, or design to vex, or annoy his mother. The intent can be inferred from the act itself and because it was done in willful disregard of his mother’s rights. C.H.W. argues that it was not an act done in willful disregard of the rights of another. He cites to State v. Howe,[7]
three consolidated burglary cases, where, in one of the cases, State v. Walsh, a mother simply locked her `out-of-control’ son out of the house without any provisions for food, shelter, or money.
The court determined that Ms. Walsh did not meet her statutory duty to provide for her son,[8] and thus she could not revoke his privilege to enter the family home. C.H.W. cites Walsh to argue that his mother’s duty to care for him results in his having an absolute privilege to enter the family home because she did not provide care for him at all times of the day. But the facts here are distinguishable from those in Walsh. Ms. W. did not banish or lock her son out of the house at all times. Instead, she provided overnight shelter, food, clothing, bus money, and a small amount of cash. Ms. W. did not fail to meet her statutory duty to provide for C.H.W. C.H.W. knowingly disregarded the rules, broke the window, and reentered the house.
The act of maliciousness is permissibly inferred under sufficient facts. `A permissive inference is valid when there is a `rational connection’ between the proven fact and the inferred fact, and the inferred fact flows `more likely than not’ from the proven fact.’[9]
Here, there is a rational connection between the proven fact, that C.H.W. broke the window, and the inference of malice. C.H.W. testified that before and during the month of April 2000 he was angry and frustrated with his mother. The evidence shows that he knew the disciplinary rules, purposefully flaunted them, and when forced to vacate the house by the time his mother left for work, he deliberately broke the basement window and reentered the house. Given these facts, the inference of malice flows more likely than not from the conduct of C.H.W., and when taken in the light most favorable to the State establishes that the actions were done with evil intent, wish, or design to vex, or annoy his mother.[10]
Further, we agree with the juvenile court that C.H.W. did not prove the affirmative defense of necessity by a preponderance of the evidence.
The defense of necessity is available `when the physical forces of nature or the pressure of circumstances cause the accused to take unlawful action to avoid a harm which social policy deems greater than the harm resulting from a violation of the law.’[11] C.H.W. did not testify to or otherwise prove that any physical forces of nature or pressure of the circumstances caused him to break the window or made it necessary for him to break the window to avoid harm. C.H.W. made a choice when he did not get up in a timely manner to accomplish his morning routine. The trial court was correct in holding that the affirmative defense of necessity was not available to C.H.W.
The conviction and disposition are affirmed.
WE CONCUR: COX, J., AGID, J.
The State concedes that this finding is not supported by the evidence, but alleges that it is not important to the question of the sufficiency of the evidence at issue here. We agree.
(1979)).
(1980).