FILED DECEMBER 6, 2022 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STATE OF WASHINGTON, ) ) No. 38299-1-III Respondent, ) ) v. ) ) TERESITA MOJICA, ) UNPUBLISHED OPINION ) Appellant. )
SIDDOWAY, C.J. — Teresita Mojica appeals her conviction for residential
burglary, arguing that the jury wrongly rejected her proof of the common law defense of
necessity. Because rational jurors could have found that she failed to prove the defense,
we affirm.
FACTS AND PROCEDURAL BACKGROUND
Teresita Mojica was driving on the Saturday of President’s Day weekend 2021
when her car ran out of gas just as she was about to cross the Oregon border and enter
Klickitat County, Washington. Ms. Mojica was a student at Wenatchee Valley College
and was unfamiliar with the area where she ran out of gas.
Before running out of gas, she had noticed and admired the Maryhill Museum,
which she could see across the Columbia River, on the Washington side. She wanted to
clear her head (she later described herself as “running away from some problems”) so, No. 38299-1-III State v. Mojica
leaving her car, she crossed a nearby bridge and walked to the museum. Report of
Proceedings (RP) at 144. She claims that on reaching it and walking on its grounds, she
slipped in the snow and hurt her back. She was not carrying a phone and claims to have
called out for help, but the museum was closed for the winter and no one responded.
Witnesses at Ms. Mojica’s trial agreed that there was inclement weather that
Saturday; according to Ms. Mojica, it was “super windy” and “freezing.” RP at 145.
Evidence was later presented that there was six to eight inches of snow on the museum
grounds. Ms. Mojica claims she lay for hours in the snow before deciding to approach a
doublewide manufactured home located west of the museum, which is where the
museum’s caretaker, Mike Clough, resided. Mr. Clough was not present, having traveled
to Hood River for the weekend.
No one responded when Ms. Mojica called out to anyone in the home, so she
broke a window in the entry door and let herself inside. There, she got out of her wet
clothing, took a shower to warm up, donned a wetsuit that she found, and helped herself
to food.
She rummaged through drawers in the home, later explaining that it was only to
look for a phone. She found a set of keys that she discovered opened an adjacent shop
that contained machinery, including what Mr. Clough described as the museum’s work
truck. Although Ms. Mojica acknowledges that by the time she located the truck she was
warm, fed, and feeling safe, she decided to take the truck to go back to Oregon and
2 No. 38299-1-III State v. Mojica
recover her car. En route, however, she drove the truck into a ditch a short distance from
where she had left her car parked. After walking to check on her car, she returned to the
truck, which was being attended to by a state trooper.
Ms. Mojica told the trooper an only partially-true story about having “borrowed”
the truck to get gas for her nearby car. RP at 169. The truck was sufficiently snowbound
that it would need to be recovered by a tow truck, but the patrolman, having noticed a gas
can in the truck, offered to drive Ms. Mojica to her car where she could refuel it with the
borrowed gas. Ms. Mojica accepted the offer, fueled her car, and returned to Mr.
Clough’s residence, where she parked her car in the shop and moved some of her
belongings inside his home.
On Mr. Clough’s return on Monday, he was surprised to see vehicle tracks that
had crossed the museum’s “grand lawn” and an unknown vehicle parked in the shop
where the work truck should have been. RP at 100. He discovered Ms. Mojica in the
home, directed her to come outside, called law enforcement, and directed Sheriff’s
Detective Timothy Neher to Ms. Mojica when he arrived. On entering the home and
checking the grounds, Mr. Clough found that Ms. Mojica had gone through some of his
belongings; eaten his food; left broken glass on the interior floor and dishes in his sink;
moved her sleeping bag, guitar and amplifier into his home; and had started a fire in an
outside lanai, burning documents and papers from the home. He also found a partially
coherent note that stated, in part, “I’m very sorry to have broken in. I was freezing
3 No. 38299-1-III State v. Mojica
outside, thought I almost lost my toes. I want to work today for i[t] I’m an artist. . . . I
[am] not a thief, please forgive me.” RP at 134-35.
Ms. Mojica was read her Miranda1 rights by Detective Neher and admitted to
breaking into Mr. Clough’s residence, taking the truck, getting it stuck, and then parking
her own car at the home. She was charged with residential burglary and taking a motor
vehicle without permission in the second degree.
At trial, the State agreed that Ms. Mojica was entitled to assert the common law
defense of necessity. The jury instruction dealing with the defense to residential burglary
read in pertinent part:
Necessity is a defense to a charge of Residential Burglary if (1) The defendant reasonably believed the commission of the crime was necessary to avoid or minimize a harm; (2) Harm sought to be avoided was greater than the harm resulting from the violation of the law; (3) The threatened harm was not brought about by the defendant; and (4) No reasonable legal alternative existed. The defendant has the burden of proving this defense by a preponderance of the evidence. . . . If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty as to this charge.
Clerk’s Papers at 53.
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
4 No. 38299-1-III State v. Mojica
The jury found Ms. Mojica guilty of both counts. She appeals, challenging only
the residential burglary conviction.
ANALYSIS
Ms. Mojica appeals her conviction for residential burglary, arguing that she
proved the defense of necessity.
The necessity defense 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.”
State v. Diana, 24 Wn. App. 908, 913, 604 P.2d 1312 (1979). To successfully raise the
defense of necessity, a defendant must show by a preponderance of the evidence the four
elements that were identified for Ms. Mojica’s jury in the instruction set forth above.
See, e.g., State v. Ward, 8 Wn. App. 2d 365, 372, 438 P.3d 588 (2019).
When a defendant contends she is entitled to a reversal of her conviction on the
basis that she established an affirmative defense as a matter of law, the appropriate
standard for our review is whether, considering the evidence in the light most favorable
to the State, a rational trier of fact could have found that the defendant failed to prove the
defense by a preponderance of the evidence. State v. Matthews, 132 Wn. App. 936, 941,
135 P.3d 495 (2006) (citing State v.
Free access — add to your briefcase to read the full text and ask questions with AI
FILED DECEMBER 6, 2022 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. 38299-1-III Respondent, ) ) v. ) ) TERESITA MOJICA, ) UNPUBLISHED OPINION ) Appellant. )
SIDDOWAY, C.J. — Teresita Mojica appeals her conviction for residential
burglary, arguing that the jury wrongly rejected her proof of the common law defense of
necessity. Because rational jurors could have found that she failed to prove the defense,
we affirm.
FACTS AND PROCEDURAL BACKGROUND
Teresita Mojica was driving on the Saturday of President’s Day weekend 2021
when her car ran out of gas just as she was about to cross the Oregon border and enter
Klickitat County, Washington. Ms. Mojica was a student at Wenatchee Valley College
and was unfamiliar with the area where she ran out of gas.
Before running out of gas, she had noticed and admired the Maryhill Museum,
which she could see across the Columbia River, on the Washington side. She wanted to
clear her head (she later described herself as “running away from some problems”) so, No. 38299-1-III State v. Mojica
leaving her car, she crossed a nearby bridge and walked to the museum. Report of
Proceedings (RP) at 144. She claims that on reaching it and walking on its grounds, she
slipped in the snow and hurt her back. She was not carrying a phone and claims to have
called out for help, but the museum was closed for the winter and no one responded.
Witnesses at Ms. Mojica’s trial agreed that there was inclement weather that
Saturday; according to Ms. Mojica, it was “super windy” and “freezing.” RP at 145.
Evidence was later presented that there was six to eight inches of snow on the museum
grounds. Ms. Mojica claims she lay for hours in the snow before deciding to approach a
doublewide manufactured home located west of the museum, which is where the
museum’s caretaker, Mike Clough, resided. Mr. Clough was not present, having traveled
to Hood River for the weekend.
No one responded when Ms. Mojica called out to anyone in the home, so she
broke a window in the entry door and let herself inside. There, she got out of her wet
clothing, took a shower to warm up, donned a wetsuit that she found, and helped herself
to food.
She rummaged through drawers in the home, later explaining that it was only to
look for a phone. She found a set of keys that she discovered opened an adjacent shop
that contained machinery, including what Mr. Clough described as the museum’s work
truck. Although Ms. Mojica acknowledges that by the time she located the truck she was
warm, fed, and feeling safe, she decided to take the truck to go back to Oregon and
2 No. 38299-1-III State v. Mojica
recover her car. En route, however, she drove the truck into a ditch a short distance from
where she had left her car parked. After walking to check on her car, she returned to the
truck, which was being attended to by a state trooper.
Ms. Mojica told the trooper an only partially-true story about having “borrowed”
the truck to get gas for her nearby car. RP at 169. The truck was sufficiently snowbound
that it would need to be recovered by a tow truck, but the patrolman, having noticed a gas
can in the truck, offered to drive Ms. Mojica to her car where she could refuel it with the
borrowed gas. Ms. Mojica accepted the offer, fueled her car, and returned to Mr.
Clough’s residence, where she parked her car in the shop and moved some of her
belongings inside his home.
On Mr. Clough’s return on Monday, he was surprised to see vehicle tracks that
had crossed the museum’s “grand lawn” and an unknown vehicle parked in the shop
where the work truck should have been. RP at 100. He discovered Ms. Mojica in the
home, directed her to come outside, called law enforcement, and directed Sheriff’s
Detective Timothy Neher to Ms. Mojica when he arrived. On entering the home and
checking the grounds, Mr. Clough found that Ms. Mojica had gone through some of his
belongings; eaten his food; left broken glass on the interior floor and dishes in his sink;
moved her sleeping bag, guitar and amplifier into his home; and had started a fire in an
outside lanai, burning documents and papers from the home. He also found a partially
coherent note that stated, in part, “I’m very sorry to have broken in. I was freezing
3 No. 38299-1-III State v. Mojica
outside, thought I almost lost my toes. I want to work today for i[t] I’m an artist. . . . I
[am] not a thief, please forgive me.” RP at 134-35.
Ms. Mojica was read her Miranda1 rights by Detective Neher and admitted to
breaking into Mr. Clough’s residence, taking the truck, getting it stuck, and then parking
her own car at the home. She was charged with residential burglary and taking a motor
vehicle without permission in the second degree.
At trial, the State agreed that Ms. Mojica was entitled to assert the common law
defense of necessity. The jury instruction dealing with the defense to residential burglary
read in pertinent part:
Necessity is a defense to a charge of Residential Burglary if (1) The defendant reasonably believed the commission of the crime was necessary to avoid or minimize a harm; (2) Harm sought to be avoided was greater than the harm resulting from the violation of the law; (3) The threatened harm was not brought about by the defendant; and (4) No reasonable legal alternative existed. The defendant has the burden of proving this defense by a preponderance of the evidence. . . . If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty as to this charge.
Clerk’s Papers at 53.
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
4 No. 38299-1-III State v. Mojica
The jury found Ms. Mojica guilty of both counts. She appeals, challenging only
the residential burglary conviction.
ANALYSIS
Ms. Mojica appeals her conviction for residential burglary, arguing that she
proved the defense of necessity.
The necessity defense 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.”
State v. Diana, 24 Wn. App. 908, 913, 604 P.2d 1312 (1979). To successfully raise the
defense of necessity, a defendant must show by a preponderance of the evidence the four
elements that were identified for Ms. Mojica’s jury in the instruction set forth above.
See, e.g., State v. Ward, 8 Wn. App. 2d 365, 372, 438 P.3d 588 (2019).
When a defendant contends she is entitled to a reversal of her conviction on the
basis that she established an affirmative defense as a matter of law, the appropriate
standard for our review is whether, considering the evidence in the light most favorable
to the State, a rational trier of fact could have found that the defendant failed to prove the
defense by a preponderance of the evidence. State v. Matthews, 132 Wn. App. 936, 941,
135 P.3d 495 (2006) (citing State v. Lively, 130 Wn.2d 1, 17, 921 P.2d 1035 (1996)).
In the State’s closing argument, the prosecutor suggested that jurors could reject
Ms. Mojica’s necessity defense on the basis that she brought about the threatened harm
5 No. 38299-1-III State v. Mojica
by leaving the relative safety and protection of her car to walk to the museum. The
prosecutor argued they could reject the defense on the basis that Ms. Mojica could not
reasonably believe that the burglary was necessary as well as the basis that she had a
reasonable legal alternative, since she could have sought help by flagging down a driver
on State Highway 14. Ms. Mojica had entered the museum grounds from Highway 14,
and Mr. Clough testified that the highway was “[w]ay less than a quarter mile” from the
home and shop. RP at 114. The prosecutor argued that particularly after the first night,
the harm that Ms. Mojica sought to avoid was not greater than her ongoing invasion of
the sanctity of Mr. Clough’s home. A trier of fact, considering the evidence in the light
most favorable to the State, could rationally have accepted all or any one of these
arguments.
The conviction is 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.
Siddoway, C.J. WE CONCUR:
Fearing, J. Staab, J.