State v. Moreno

• Decision Date: 17 August 2020
• Docket Number: No. 78856-6-I,78856-6-I
• Citation: 470 P.3d 507,14 Wash.App.2d 143
• Parties: STATE of Washington, Respondent, v. Francisco Ruben MORENO, Appellant.
• Court: Washington Court of Appeals

14 Wash.App.2d 143

470 P.3d 507

STATE of Washington, Respondent,

v.Francisco Ruben MORENO, Appellant.

No. 78856-6-I

Court of Appeals of Washington, Division 1.

FILED August 17, 2020

Kate Huber, Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, for Appellant/Cross-Respondent.

Prosecuting Attorney Snohomish, Snohomish County Prosecuting Attorney, 3000 Rockefeller Ave. M/s 504, Everett, WA, 98201, Seth Aaron Fine, Snohomish Co. Pros. Ofc., 3000 Rockefeller Ave., Everett, WA, 98201-4060, for Respondent/Cross-Appellant.

PUBLISHED OPINION

Appelwick, J. ¶1 Moreno appeals his convictions for first degree burglary, fourth degree assault, and interfering with domestic violence reporting. He argues that knowledge of the unlawfulness of one's entry or remaining is an essential element of first degree burglary. He asserts that the State violated its discovery obligations and the court's discovery order by failing to identify the jail calls it intended to use at trial. Further, he argues that the court violated his right to present a defense when it refused to instruct the jury on self-defense. He also argues that the court miscalculated his offender score when it concluded that his burglary and assault convictions did not encompass the same criminal conduct. Last, he asserts that certain LFOs must be stricken from his judgment and sentence, and that a statutory citation must be corrected. We affirm Moreno's convictions, but remand for resentencing to correct his offender score and the statutory citation in his judgment and sentence.

FACTS

¶2 Francisco Moreno and Ashley Vollmar began dating in August 2017. Moreno moved into Vollmar's townhome in Everett that same month. Two months later, they found out they were expecting a child together.

¶3 According to Vollmar, she kicked Moreno out of her house and changed the locks at the end of October 2017. Despite kicking him out, she testified that she continued her relationship with him until January 2018. According to Moreno, he and Vollmar continued their relationship until early April 2018. He testified that she never changed the locks on him, and that he was welcome to live in her home throughout their relationship.

¶4 Vollmar testified that the morning of Sunday, April 8, 2018, she picked up a car that Moreno had taken from her garage earlier that week. She stated that he had come over Tuesday night to pick up his tribal check, and that her car was gone when she woke up the next morning. She explained that she retrieved her car on April 8 from a residence in Marysville. That same afternoon, she stated that Moreno called her looking for the car. She denied having it. She did not specify where she was when Moreno called her. When she was at home later that night, Vollmar missed a call from an unknown number. She called the number back, and it was Moreno. Despite telling him that he was not allowed at her home, she stated that he told her he was going to come over. She explained that he also started yelling at and threatening her. She testified, "He was saying he's going to beat my ass and I told him I was going to call the police."

¶5 Further, Vollmar testified that while she was on the phone with 911, she heard her door get kicked in. She explained that Moreno came up to her bedroom door, grabbed her, threw her on the bed, held her down by her neck so that she could not move, and took her phone out of her hand. She stated that she was eventually able to break free and run downstairs. As she was running down the stairs, she testified that Moreno grabbed her again and she fell to the ground on her knees and stomach. She explained that Moreno then ran out the front door, and she waited for the police to arrive.

¶6 In contrast, Moreno testified that he and Vollmar shared the car that he took from the garage. He also testified that he took the car on April 8, not earlier in the week. He explained that on April 8, he was doing laundry and barbecuing at Vollmar's house all day before driving the car to his ex-girlfriend's house at 3:00 p.m. to visit his son.¹ He stated that he had not seen Vollmar all day because she was at work. After visiting his son, he explained that he went to a bar around 8:00 p.m. He parked the car outside the bar with his phone, keys, and wallet inside. When he went outside to check his phone, he realized that the car was gone. He was then able to find someone to give him a ride to Vollmar's house.

¶7 When he arrived at the house, Moreno stated that he remembered he did not have his keys so he knocked on the door. After no one answered, he walked around to the back of the house and quickly ran up to the back door because he thought it was open. The door was locked, and he stated that he ended up going "right through the window." He testified that once he was inside, he went upstairs and turned on the light. At that point, he explained that Vollmar threw his phone at him, told him to leave, and told him she had called the police. He testified that he then started looking for his keys and wallet. He explained that Vollmar grabbed his wallet first, he tried to grab it back from her, and they ended up "kind of wrestling around over it." He stated that he ended up taking his wallet and walking outside. Once he was outside, the police blocked him from leaving.

¶8 The State charged Moreno with first degree burglary domestic violence, aggravated by domestic violence against a pregnant victim, fourth degree assault domestic violence, and interfering with domestic violence reporting.² At a June 29, 2018 pretrial hearing, Moreno asked the trial court to direct the State to provide him with a list of his jail telephone calls that it planned to use at trial. He reasoned that because a detective in the case had already listened to "60 days’ worth of jail calls," it would be fair for the State to provide him with this information. The court asked the State to clarify whether it was intending "in [its] case in chief to use any of the jail calls." The State responded that it did not recall the calls being relevant, but that it needed to review a detective's report to make sure. The court ordered the State to "provide to the defense if it intends to use any jail phone calls by Mr. Moreno what date and phone calls it intends to use" by July 2, 2018. The State later gave notice that it did not intend to use the calls.

¶9 However, at trial, Moreno testified that he had been at Vollmar's house all day on April 8 before leaving to visit his son. The next day, the State sought to introduce excerpts from Moreno's jail calls in its rebuttal. The trial court found that Moreno's statements in two of those excerpts contradicted his testimony regarding his whereabouts on April 8. Moreno asked the trial court to disallow the evidence. He argued that the State's attempt to introduce the excerpts from his jail calls violated the court's discovery order and relevant case law. He also asked for a continuance so that he could listen to the calls.

¶10 The trial court ruled that excerpts "two and three" from Moreno's jail calls were proper rebuttal and impeachment testimony. It also ruled that the State did not violate the discovery order. Further, it denied Moreno's request for a continuance. Instead, it granted a recess to allow Moreno and his counsel to listen to the calls in the jury room.

¶11 At the close of evidence, Moreno asked the trial court to instruct the jury on self-defense. The court denied his request. A jury then found him guilty as charged. At sentencing, Moreno asked the court not to count his fourth degree assault conviction towards his offender score because his burglary and assault convictions constituted the same criminal conduct. The court disagreed and counted his assault conviction. On the first degree burglary conviction, it sentenced him to 48 months of confinement and 18 months of community custody. On the fourth degree assault and interfering with domestic violence reporting convictions, it sentenced him to 364 days of confinement for each conviction. It ordered that the sentences for all three convictions run concurrently with one another. Last, the court imposed two legal financial obligations (LFOs).

¶12 Moreno appeals.

DISCUSSION

¶13 Moreno makes six arguments. First, he argues that knowledge of the unlawfulness of one's entry or remaining is an essential element of first degree burglary. Second, he argues that the State violated its discovery obligations and the court's discovery order by failing to identify the jail telephone calls it intended to use at trial. Third, he argues that the court violated his right to present a defense when it refused to instruct the jury on self-defense. Fourth, he argues that the court miscalculated his offender score when it concluded that his burglary and assault convictions did not encompass the same criminal conduct. Fifth, he argues that certain LFOs must be stricken from his judgment and sentence. And sixth, he argues that a statutory citation in his judgment and sentence must be corrected.

I. Essential Element of First Degree Burglary

¶14 Moreno argues first that knowledge of the unlawfulness of one's entry or remaining is an essential element of first degree burglary. He contends that his conviction must be reversed, because the State failed to plead this element in the information and the trial court failed to instruct the jury on it.³

¶15 Criminal defendants have a constitutional right to be informed of the nature and cause of the charges against them. U.S. CONST . amend. VI ; WASH. CONST. art. I, § 22. To be constitutionally adequate, a charging document must include all essential elements of the crime, both statutory and nonstatutory. State v. Kjorsvik, 117 Wash.2d 93, 101-02, 812 P.2d 86 (1991). An essential element is one whose specification is necessary to establish the very illegality of the behavior. State v. Johnson, 119 Wash.2d 143, 147, 829 P.2d 1078 (1992). The primary purpose of the rule...