Opinion
No. 22819-3-III
Filed: May 5, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Benton County. Docket No: 03-1-00054-3. Judgment or order under review. Date filed: 03/05/2004. Judge signing: Hon. Vic L. VanderSchoor.
Counsel for Appellant(s), Dennis W. Morgan, Attorney at Law, 120 W Main Ave, Ritzville, WA 99169-1408.
Counsel for Respondent(s), Scott Wayne Johnson, Benton County Prosecutors Office, M/S G, 7122 W Okanogan Pl, Kennewick, WA 99336
This is an appeal from a conviction for burglary in the first degree. Mark Forsythe argues that the State did not present sufficient evidence to prove the statutory alternative means of committing burglary and a unanimity instruction was therefore required. He also argues he was denied a speedy trial under CrR 3.3. There is sufficient evidence and no speedy trial violation. We therefore affirm the conviction.
FACTS
Mark Forsythe and LeAnne Hurd had an unstable and violent relationship. The court granted Ms. Hurd a no contact order against Mr. Forsythe. Mr. Forsythe and Ms. Hurd continued to see each other `off and on' even after the no contact order was entered. Report of Proceedings (Jan. 22, 2004) (RP) at 98. Ms. Hurd, however, did not give Mr. Forsythe blanket permission to enter her house. She told him `not to be there' and did not give him a key. RP at 93, 95.
Mr. Forsythe entered Ms. Hurd's home while she was out. Ms. Hurd returned in the early morning hours and found Mr. Forsythe in her dark house. Mr. Forsythe started an argument with Ms. Hurd. It became violent. Mr. Forsythe hit and kicked Ms. Hurd. Before he left Mr. Forsythe told Ms. Hurd that `if [she] were to call the cops that he was going to kill [her].' RP at 97.
Ms. Hurd called the police. Sergeant Jeffrey Taylor responded. Ms. Hurd reported the assault. Photographs were taken of Ms. Hurd's bruises later in the day. Sergeant Taylor also noticed a strong bleach odor in the home. He located the source of the odor in a downstairs closet. A bottle of bleach had been poured over clothing and other items in the closet.
Mr. Forsythe was arrested and charged with burglary in the first degree. A jury found him guilty.
DISCUSSION Sufficiency of the Evidence
Mr. Forsythe argues that the State failed to present sufficient evidence of the unlawful entry prong of first degree burglary. And the court therefore had to give the jury a unanimity instruction.
We review evidence, following a challenge to the sufficiency of the evidence, in a light most favorable to the State. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). The challenge admits the truth of the State's evidence and all reasonable inferences. Id. We defer to the trier of fact on questions of fact. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
First degree burglary requires an unlawful entry or unlawful remaining `with intent to commit a crime against a person or property therein.' RCW 9A.52.020(1). Sufficient evidence to prove both means of committing the crime is required if no unanimity instruction is given. State v. Klimes, 117 Wn. App. 758, 770, 73 P.3d 416 (2003).
The violation of a no contact order is `a predicate crime for . . . burglary.' State v. Stinton, 121 Wn. App. 569, 576, 89 P.3d 717 (2004). It is sufficient to prove the broad element of an `intent to commit a crime against a person' as used in the burglary statute. Id. at 574. And consent or permission is not a defense to the violation of the no contact order. State v. Dejarlais, 88 Wn. App. 297, 303-04, 944 P.2d 1110 (1997), aff'd, 136 Wn.2d 939, 969 P.2d 90 (1998).
Here, Mr. Forsythe acknowledges that he violated the no contact order. And Ms. Hurd did not give him permission to be in her house on the evening of this assault. Ms. Hurd had visible bruises, and bleach had been poured on the clothing in her closet.
This shows that Mr. Forsythe `unlawfully entered' Ms. Hurd's home with the intent to commit a crime therein. A unanimity instruction was not, then, required.
Speedy Trial Violation
Mr. Forsythe argues he was not brought to trial within the time limits specified in former CrR 3.3(c)(1) (2001).
We review the application of the speedy trial rule in CrR 3.3 de novo. State v. Duffy, 86 Wn. App. 334, 341, 936 P.2d 444 (1997). A defendant must object to the speedy trial dates when he has notice the rule will be violated by a given trial date. Former CrR 3.3(f)(2) (2001); State v. Becerra, 66 Wn. App. 202, 206, 831 P.2d 781 (1992). A defendant must object to the dates within 10 days after his trial is rescheduled. Former CrR 3.3(f)(2).
Mr. Forsythe's trial was rescheduled for November 3, 2003, and the pretrial date was October 24. Mr. Forsythe argues that he had been in custody for 68 days on October 24. If we assume Mr. Forsythe was in custody on this charge (a fact not clear from this record), the new trial date was set beyond the 60-day limit. But the court rescheduled his trial on September 12. This date was well within the time for speedy trial under any scenario. And Mr. Forsythe did not object to the new trial date. He therefore waived any assignment of error. Former CrR 3.3(f)(2); Becerra, 66 Wn. App. at 206.
Additional Grounds for Review
Mr. Forsythe raises additional grounds for review and challenges the sufficiency of the evidence. However, as stated above, we give deference to the trier of fact. Walton, 64 Wn. App. at 415. It is in the best position to evaluate the credibility of the testimony and the overall persuasiveness of the evidence. Id. at 415-16.
We affirm the conviction.
A majority of the panel has determined that 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.
SCHULTHEIS, J. and KURTZ, J., Concur.