State of Washington v. Denny Albert Dare

• Court: Court of Appeals of Washington
• Decided: September 19, 2017
• Docket: 34231-0
• Status: Unpublished

Opinion

FILED SEPTEMBER 19, 2017 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill

IN THE COURT OF APPEALS OF THf STATE OF WASHINGTON DIVISION TJ1REE

STATE OF WASHINGTON, ) I ) No. 34231-0-111 Respondent, ) I

) v. ) ) DENNY ALBERT DARE, ) UNPUBLISHED OPINION ) Appellant. ) '

SIDDOWAY, J. - Denny Dare appeals his ~onviction for residential burglary, ! i arguing that no substantial evidence supports the 1equired element that he entered the I residence with intent to commit a crime-as evid,nced, he contends, by the fact that the

jury acquitted him on the two other counts (felon~ harassment and fourth degree assault) i

charged by the State. Because his acquittal on th~ other charges does not have the

significance he attaches and there was sufficient evidence of intent, we affirm. No. 34231-0-III State v. Dare

I FACTS AND PROCEDURALIBACKGROUND i

Denise Johnson borrowed $90 from Denny ~are and promised to pay him back ,i

the following day. On that day, Ms. Johnson was sttting in her apartment when Mr. Dare

arrived "screaming and hollering," pushed open as, reen door, and entered the apartment. !

Report of Proceedings (RP) at 96. Ms. Johnson as~ed Mr. Dare to calm down but he i continued shouting, demanding his money. He thr atened to kill Ms. Johnson and her cat

more than once, including in the presence of a neig bor, Joseph Collom, who came to

Ms. Johnson's apartment out of concern when heh ard the commotion. As Ms. Johnson

attempted to explain that he needed to wait until he mail arrived, Mr. Dare went

"ballistic," threw a basket of laundry, and accordin to Ms. Johnson, pushed her against

the wall, causing her to fall to the ground. RP at 9 . He ignored repeated demands that

he leave, eventually complying only after police w re called.

Mr. Dare was charged with one count of res dential burglary, one count of felony

harassment (threats to kill), and one count of assau in the fourth degree. At trial, Ms.

Johnson, Mr. Collom, and a responding officer test fied. In addition to the matters set

forth above, Ms. Johnson testified that she took Mr( Dare's threats seriously and believed

he could and would follow through.

Mr. Dare testified in his own defense. He af mitted he became upset when he went

to Ms. Johnson's apartment to obtain the repaymeJ she had promised, because she did I not even have the $20 she knew he needed that da1. He claimed he had knocked and

2 I No. 34231-0-III State v. Dare

been invited into her apartment and denied pushing;her at any point or threatening her on

leaving the apartment, but admitted that at one poi11it he said he "ought to" strangle her

and her cat. RP at 124. He also admitted to throwing clothes, but claims he only threw a i

pile of clothes from the floor into Ms. Johnson's ro~m, asking, "[H]ave you ever heard of

a hamper?" Id.

The jury found Mr. Dare guilty ofresidentiaJ burglary, but acquitted him of the

charges of felony harassment and fourth degree ass~ult. Mr. Dare appeals.

ANALYSIS.

Mr. Dare challenges the sufficiency of the efidence to support one of the required

elements of residential burglary. As the court instructed the jury, to prove the charge of

residential burglary, the State was required to prov¢ three elements beyond a reasonable

doubt:

(1) That on or about 13th day of September, 2014, the defendant entered or 1

remained unlawfully in a dwelling; · (2) That the entering or remaining was with [ntent to commit a crime against a person or property therein; and (3) That this act occurred in the Okanogan County, State of Washington.

Clerk's Papers at 42 (Instruction 7). Mr. Dare contends the State's evidence was

insufficient on the element of his intent to commit a crime against a person or property in

Ms. Johnson's apartment. The State argued to the jury that Mr. Dare went to Ms.

Johnson's apartment with the intent not only to obtain repayment, but also "to threaten

3 No. 34231-0-111 State v. Dare

her if she didn't pay him .... He went over there to put the fear of God in her for not

paying him back like he thought they had agreed." RP at 143-44.

Due process requires the State to prove all elements of the crime beyond.a

reasonable doubt. State v. Washington, 135 Wn. App. 42, 48, 143 P.3d 606 (2006).

Where the sufficiency of evidence is challenged, W¢! review "whether, after viewing the

evidence in the light most favorable to the State, an~ rational trier of fact could have

found guilt beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192,201, 829 P.2d

1068 (1992). "[A]ll reasonable inferences from the evidence must be drawn in favor of

the State and interpreted most strongly against the c:lefendant." Id. We do not reweigh

the evidence or substitute our judgment for that of the trier of fact. Quinn v. Cherry Lane

Auto Plaza, Inc., 153 Wn. App. 710, 724, 225 P.3d 266 (2009).

The State correctly argues on appeal that once unlawful entry into a building has

been proven, RCW 9A.52.040 authorizes an infere111.ce that the accused acted with intent

to commit a crime against a person or property ther:ein "unless such entering or remaining

shall be explained by evidence satisfactory to the trier of fact to have been made without

such criminal intent." As pointed out in State v. Cordero, 170 Wn. App. 351, 367-69,

284 P.3d 773 (2012), however, as a matter of due process, the statute cannot relieve the

State of the burden of proving each element-so the inference must flow on a more

probable than not basis from what the State proves. No direct evidence of intent is

required; it may be inferred if the facts and circumstances plainly indicate such an intent

4 No. 34231-0-III State v. Dare

as a matter oflogical probability. Id. Finally, the State is not required to prove the intent

to commit a specific crime. State v. Bergeron, l 05 Wn.2d 1, 16-17, 711 P .2d 1000

(1985). Here, jurors could infer from evidence that, Mr. Dare did threaten and intimidate

Ms. Johnson while in her apartment and that he probably wentto her apartment with the

intent to do just that.

Mr. Dare argues that because jurors acquitted him of felony harassment and fourth

degree assault, however, they must have found insufficient evidence of an intent to

commit either crime. We note that even in the context of inconsistent verdicts ( and this

verdict is not inconsistent), inconsistency does not mean that the finding of guilt and

resulting conviction cannot stand, because "Li]uries return inconsistent verdicts for

various reasons, including mistake, compromise, artd lenity." State v. Groins, 151 Wn.2d

728,733, 92 P.3d 181 (2004) (citing Dunn v. United States, 284 U.S. 390, 393-94, 52 S.

Ct. 189, 76 L. Ed. 356 (1932)).

This verdict is not inconsistent, because jurors could well have found that while

Mr. Dare went to the apartment with the intent to commit harassment, assault, or some

similar crime, his conduct at the apartment did not complete either of the two charged

crimes. In fact, the relevant insight one can draw ftom the jurors' acquittals on two

counts is that they were comfortable denying the State a guilty verdict when the evidence

was insufficient, but found the evidence sufficient to prove the elements of the residential

burglary charge.

5 No. 34231-0-III State v. Dare

We agree that the evidence was sufficient and affirm.

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.

d7aw.~,ft· ddoway,J.

WE CONCUR:

Fearing, C ..