State v. Hankel

• Decision Date: 06 December 2022
• Docket Number: 38573-6-III
• Parties: STATE OF WASHINGTON, Respondent, v. BRANDON ROBERT HANKEL, Appellant.
• Court: Washington Court of Appeals

STATE OF WASHINGTON, Respondent, v. BRANDON ROBERT HANKEL, Appellant.

No. 38573-6-III

Court of Appeals of Washington, Division 3

December 6, 2022

UNPUBLISHED OPINION

LAWRENCE-BERREY, J.

Brandon Hankel appeals his bench trial conviction of burglary in the second degree with sexual motivation. We are unpersuaded by the three arguments he raises on appeal and affirm the trial court.

FACTS

In September 2019, a physical education teacher was working alone in her Kennewick High School office, located in the school's annex gym. At approximately 8:00 a.m., Brandon Hankel entered the annex just steps away from her office. He was not permitted to be on the property, having been previously trespassed.

As Mr Hankel approached the teacher's office, she asked if she could help him. He asked her for the time. The teacher said the time was 8:03, and Mr. Hankel responded, "'what?'" Clerk's Papers (CP) at 42. She then got up from her desk, approached Mr Hankel, and showed him her watch and repeated the time. At this point, she was standing just inside the open door to her office and he was one or two feet away from her.

Mr Hankel turned and looked at her in a way that unnerved her. He then put his hands on the frame of the open door, leaned and told her: "'I want to fuck you.'" CP at 42. The gym teacher immediately backed away and slammed her office door shut. Mr. Hankel continued to look at her through the glass pane of the office door.

The teacher immediately picked up her office phone and called for help. Mr. Hankel fled the building and as he headed off school grounds, the school resource officer, Michael Rosane, gave chase. Officer Rosane knew of Mr. Hankel and began calling out his name, commanding him to stop. He eventually arrested Mr. Hankel after finding him hiding in a pile of leaves on the side of a residence. While being arrested, Mr. Hankel repeated multiple times: "'I just asked her what time it was, and she freaked out.'" CP at 43.

Officer Rosane contacted the teacher about a half-hour after her encounter with Mr. Hankel. The resource officer could tell she was distraught and visibly crying.

Procedure and motions

The State charged Mr. Hankel with burglary in the second degree with sexual motivation. Mr. Hankel later waived his right to a jury trial.

During pretrial motions, the State moved to admit evidence of a common scheme or plan under ER 404(b). Mr. Hankel filed a motion in limine and objected to the State's proffered ER 404(b) evidence. At the start of Mr. Hankel's bench trial, the trial court heard argument on the ER 404(b) evidence and ruled it was admissible.

The trial court entered separate findings of fact on the ER 404(b) evidence, which are unchallenged on appeal. The court found that on a prior occasion in 2013, Mr. Hankel contacted J.A. in the parking lot of Kennewick City Hall in the early morning. Ms. A. was alone with no one else around. As she was about to start her work day, Mr. Hankel approached. They had never met before and there was no reason for Mr. Hankel to approach her in the parking lot. At that point, Mr. Hankel said to her: "'Is this the place I'm going to fuck you?'" CP at 36. Ms. A. was scared Mr. Hankel intended to sexually assault her, so she hurried inside the city building. He followed her, causing her to further fear for her safety.

Trial

The State called a number of witnesses: the officer who trespassed Mr. Hankel from the school property, the physical education teacher, two teachers who witnessed Mr. Hankel on campus, and Officer Rosane.

The physical education teacher described her encounter with Mr. Hankel and testified she had never been so scared or felt more vulnerable in her life. Similarly, Ms. A. testified about being "terrified" and thinking that Mr. Hankel was going to hurt her. Report of Proceedings (Oct. 28, 2021) (RP) at 84.

At the close of the State's case, the defense unsuccessfully moved to dismiss the charge. The defense rested without presenting evidence, and both sides presented closing arguments to the court.

The State argued that it had proved unlawful entry because Mr. Hankel had been trespassed from the school building and described the dispositive issue as whether it had established beyond a reasonable doubt that Mr. Hankel intended to commit a crime in the building. The State argued it had presented sufficient evidence of this, explaining that Mr. Hankel confronting the teacher, alone, and saying "'I want to fuck you'" established an intent to cause reasonable apprehension of fear for her safety, i.e., an assault.

Defense counsel argued the State had failed to prove that Mr. Hankel intended to commit a crime in the building. Counsel argued: "This at the very most is a criminal trespass in the second degree. We've said that all along. There's just no intent to commit a crime therein that has been proven by the state beyond a reasonable doubt. We'd ask for a verdict of not guilty." RP at 98.

After closing arguments, the trial court made comments before announcing its decision. The court said it thought there was certainly a crime committed and that it would be trespass in the first degree. Defense counsel then, responding to a question from the court, explained she thought criminal trespass in the second degree was the lesser included offense to second degree burglary. The court disagreed and discussed the elements of criminal trespass in the first degree to explain why that offense was the correct lesser included offense. The court continued:

THE COURT: . . . But this might be irrelevant anyway. My understanding, correct me if I'm wrong, but . . . criminal trespass in the first degree has not been charged as an alternative offense on this, and it certainly has not been requested, unless you're asking me to consider it, [Defense Counsel], as a lesser-included offense.

[Defense Counsel]: Your Honor, we are not making that request. ....

THE COURT: . . . So I think that there definitely was an offense here. I think it was criminal trespass in the first degree was actually committed on this, but that hasn't been charged, and it hasn't been requested as a lesser included . . . so the Court can't convict on that basis ....I think that [Mr. Hankel] unlawfully entered or remained in that building because of the fact that he wished at that point in time to address somebody in a sexual nature. I think that the prior [ER] 404(b) evidence the Court allowed clearly shows showed [sic] that that's what his intent was. It was to address or confront a female and make a sexual comment to her that would scare that person out of their wits....

RP at 99-100.

The trial court found Mr. Hankel guilty of burglary in the second degree with sexual motivation. It later entered separate written findings of fact and conclusions of law. Relevant here, the court found:

34. Therefore, as shown by his actions, by both in this case and the prior incident on May 1, 2013, [Mr. Hankel] unlawfully entered and remained in the Kennewick High School Annex Building with the intent to cause fear and apprehension in another that he was going to sexually assault them, and he did this for his own sexual gratification.

CP at 45. The court found that the elements of burglary in the second degree with notice of a sexual motivation allegation were satisfied beyond a reasonable doubt, convicted Mr. Hankel of the charged crime, and later sentenced him to 84 months of confinement and 36 months of community custody.

Mr. Hankel timely appealed.

ANALYSIS

A. SUFFICIENCY OF EVIDENCE

Mr. Hankel contends the State presented insufficient evidence to sustain his conviction for burglary in the second degree. Specifically, he contends the State failed to prove beyond a reasonable doubt he had the specific intent to create apprehension of imminent bodily harm in the gym teacher when he said, "'I want to fuck you.'" We disagree.

Standard of review

To determine whether sufficient evidence supports a conviction, 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, 105-06, 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. State v. Stevenson, 128 Wn.App. 179, 193, 114 P.3d 699 (2005).

"Substantial evidence" is evidence sufficient to persuade a fair-minded person of the truth of the asserted premise. Id. In claiming insufficient evidence, the defendant necessarily admits the truth of the State's evidence and all reasonable inferences that can be drawn from it. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992); State v. Drum, 168 Wn.2d 23, 35, 225 P.3d 237 (2010). These inferences "must be drawn in favor of the State and interpreted most strongly against the defendant." Salinas, 119 Wn.2d at 201. Further, we must defer to the trier of fact for purposes of resolving conflicting testimony and evaluating the persuasiveness of the evidence. State v. Trout, 125 Wn.App. 403, 409, 105 P.3d 69 (2005).

Intent to commit the crime of assault

A person is guilty of burglary in the second degree if he or she enters or remains unlawfully in a building other than a vehicle or a dwelling, with the intent to commit a crime against a person or property therein. RCW 9A.52.030(1). Assault is one such type of crime against a person. Washington defines "assault" according to the common law and recognizes three alternative means for committing assault: (1) battery, (2) attempted battery, and (3) creating apprehension of bodily harm. State v Miller, 197 Wn.App....