State Of Washington v. L. R. ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 70021-9-1
Respondent,
DIVISION ONE
UNPUBLISHED OPINION
L.R.,
Appellant. FILED: April 28, 2014
Appelwick, J. — L.R. argues that there is insufficient evidence to sustain his
convictions for minor in possession of alcohol under RCW 66.44.270(2)(a) and for minor
exhibiting the effects of alcohol in a public place under RCW 66.44.270(2)(b). The State
concedes error on the former, but we find sufficient evidence to support the latter. We
reverse and dismiss L.R.'s conviction under RCW 66.44.270(2)(a) and affirm his
conviction under RCW 66.44.270(2)(b).
FACTS
On June 12, 2012, at approximately 5:33 p.m., L.R.'s mother called the
Bellingham Police to report that her son had been consuming alcohol. Then, around
5:49 p.m., L.R. called the police and requested a portable breath test (PBT) reading.
The dispatcher noted that L.R. sounded drunk during the phone call.
At approximately 6:00 p.m., Officer Michael Shannon arrived at L.R.'s home.
Officer Shannon noticed the L.R. had an overwhelming odor of alcohol on his breath.
L.R.'s mother told Officer Shannon that L.R. had been at a friend's house earlier that
day. The friend called L.R.'s mother to tell her that L.R. was intoxicated and needed to
leave. L.R.'s mother explained that L.R. got home just before the police arrived.
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At 6:10 p.m., L.R.'s PBT reading showed a breath alcohol content of .245. In
Officer Shannon's opinion, L.R. was obviously intoxicated. L.R. was 17 years old at the
time.
L.R.'s mother was concerned for her son's safety, because his intoxication level
was so high. An ambulance was called to the scene, and emergency medical
professionals determined that L.R. needed to be taken to the emergency room.
On June 19, 2012, the State charged L.R. with violation of RCW 66.44.270(2)(a)
or RCW 66.44.270(2)(b). RCW 66.44.270(2)(a) makes it unlawful for any person under
age 21 to "possess, consume, or otherwise acquire any liquor." RCW 66.44.270(2)(b)
makes it unlawful for a person under age 21 "to be in a public place, or to be in a motor
vehicle in a public place, while exhibiting the effects of having consumed liquor."
L.R. initially entered drug court. However, on December 11, 2012, a superior
court commissioner entered a drug court termination order due to L.R.'s noncompliance.
L.R.'s case proceeded to trial on stipulated facts. A commissioner found him guilty
under both RCW 66.44.270(2)(a) and RCW 66.44.270(2)(b).
L.R. moved to revise the commissioner's verdict, arguing that the State's
evidence was insufficient to support a finding of guilt.
On March 15, 2013, a superior court judge denied L.R.'s motion to revise and
affirmed the commissioner's finding of guilt under RCW 66.44.270(2)(a) and RCW
66.44.270(2)(b). The superior court entered findings of fact and conclusions of law to
that effect. It concluded that the State proved beyond a reasonable doubt that on June
12, 2012: L.R. was under 21; he consumed alcohol; he exhibited the effects of
No. 70021-9-1/3
consuming alcohol in Bellingham; and he was intoxicated and exhibited the effects of
such intoxication in a public place in Bellingham.
L.R. appeals.1
DISCUSSION
L.R. argues on appeal that there is insufficient evidence to support his
convictions under RCW 66.44.270(2)(a) and RCW 66.44.270(2)(b). He does not
challenge the superior court's findings of fact. Rather, he challenges the conclusions of
law drawn from those facts.
Unchallenged findings of fact are verities on appeal. State v. A.M., 163 Wash. App.
414, 419, 260 P.3d 229 (2011). Our review is then limited to determining whether the
findings of fact support the conclusions of law. Id. We review conclusions of law de
novo. \j± Whether evidence is sufficient to support a conviction is an issue of law.
State v. Drum. 168 Wash. 2d 23, 33, 225 P.3d 237 (2010). We review the evidence in the
light most favorable to the State. \± at 34. The relevant question is whether any
rational trier of fact could find the essential elements of the crime beyond a reasonable
doubt. ]d at 34-35.
I. Sufficiency of the Evidence Under RCW 66.44.270(2)(a)
L.R. argues that his conviction under RCW 66.44.270(2)(a) must be reversed,
because there is insufficient evidence to show that he possessed or consumed alcohol.
1 L.R. appealed from the commissioner's original findings of fact and conclusions
of law, dated January 15, 2013. However, once the superior court makes a decision on
revision, the appeal is from the superior court's decision, not the commissioner's. State
v. Ramer. 151 Wash. 2d 106, 113, 86 P.3d 132 (2004). Therefore, we review the superior
court's findings and conclusions entered on March 15, 2013. See id.
No. 70021-9-1/4
L.R. points out that by the time he arrived home, the alcohol had already assimilated
into his body and there was no corroborating evidence to prove his prior possession or
consumption of alcohol in Washington. The State concedes error. We accept the
State's concession. Accordingly, we reverse and dismiss L.R.'s conviction under RCW
66.44.270(2)(a) for insufficient evidence. State v. Hickman, 135 Wash. 2d 97, 103, 954
P.2d 900 (1998).
II. Sufficiency of the Evidence Under RCW 66.44.270(2)(b)
L.R. also argues that there is insufficient evidence to show that he exhibited the
effects of having consumed liquor in a public place under RCW 66.44.270(2)(b).
RCW 66.44.270(2)(b) provides:
It is unlawful for a person under the age of twenty-one years to be in a
public place, or to be in a motor vehicle in a public place, while exhibiting
the effects of having consumed liquor. For purposes of this subsection,
exhibiting the effects of having consumed liquor means that a person has
the odor of liquor on his or her breath and either: (i) Is in possession of or
close proximity to a container that has or recently had liquor in it; or (ii) by
speech, manner, appearance, behavior, lack of coordination, or otherwise,
exhibits that he or she is under the influence of liquor.
The term "public place" includes "streets and alleys of incorporated cities and towns," as
well as "state or county or township highways or roads." RCW 66.04.010(35).
"[Exhibiting the effects of having consumed liquor" has two conjunctive evidentiary
requirements. See RCW 66.44.270(2)(b). First, the person must have the "odor of
liquor on his or her breath" in a public place, jd. Second, the person must also either
(1) be in possession of or close proximity to an alcohol container or (2) exhibit signs of
intoxication by speech, manner, appearance, behavior, or lack of coordination in a
public place, jd.
No. 70021-9-1/5
The trial court found that L.R. traveling home "from any other location, whether
by automobile or on foot, would require travel through public thoroughfares." L.R. does
not contest this finding and agrees that he was in a "public place" when he traveled
home. However, L.R. argues that there is no evidence and the trial court did not find
that he exhibited the effects of alcohol while en route to his home, as defined by the
statute. The State urges us to infer that L.R. exhibited the effects of intoxication on his
way home, because he was intoxicated at his friend's house and showed signs of
intoxication later at his home.
The trial court made the following findings. L.R. was intoxicated at his friend's
house and needed to go home as a result. L.R. was then in a public place on his way
home. Around 5:33 p.m., L.R.'s mother called the police to report that L.R. had been
consuming alcohol. L.R. sounded drunk on the phone when he called the police around
5:49 p.m. At 6:10 p.m., L.R.'s breath alcohol content was .245. Around the same time,
Officer Shannon smelled an overwhelming odor of alcohol on L.R.'s breath and thought
L.R. was obviously intoxicated. L.R.'s mother reported that L.R. got home just before
the police arrived.
We do not know what time L.R. left his friend's house or whether he exhibited
signs of intoxication there. However, L.R. clearly exhibited the effects of alcohol under
RCW 66.44.270(2)(b)(ii) once he arrived home—he sounded drunk on the phone with
the dispatcher and was obviously intoxicated to Officer Shannon. And, L.R. had the
odor of liquor on his breath. The trial court could reasonably infer that L.R. exhibited
these same effects of intoxication on his way home, because he was extremely
intoxicated just after he arrived home. We therefore hold that the trial court's findings
No. 70021-9-1/6
are sufficient to support its conclusion of law that L.R. exhibited the effects of
intoxication in a public place.2
We reverse and dismiss L.R.'s conviction under RCW 66.44.270(2)(a). We
affirm L.R.'s conviction under RCW 66.44.270(2)(b).
WE CONCUR:
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2 The parties dispute whether the introductory sentence to finding of fact 10
should actually be treated as a conclusion of law. The sentence states, "The following
evidence indicated that [L.R.] was in a public place while intoxicated and exhibiting the
effects of intoxicating liquor on June 12, 2012." The inference being drawn in this
sentence could properly be drawn either as a fact or as a conclusion.