State Of Washington, Respondent V. Jonnathan Hoskins, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
THE STATE OF WASHINGTON, ) No. 80448-1-I
)
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
JONNATHAN RAY HOSKINS, )
)
Appellant. )
BOWMAN, J. — Jonnathan Ray Hoskins appeals his conviction for one
count of residential burglary. He claims the trial court abused its discretion and
deprived him of his constitutional rights to a fair trial and the effective assistance
of counsel when it denied his motion to continue the morning of his jury trial. He
also argues insufficient evidence supports finding that he entered or remained
unlawfully in a “dwelling.” We reject his claims and affirm.
FACTS
At around 10:00 p.m. on August 27, 2018, Seattle police officers
responded to a burglary in progress. Neighbors reported seeing several people
break in through the front door of Dongyi Huang’s Beacon Hill home. Police set
up a containment barrier around the house, announced themselves multiple
times, and sent a K-9 search dog inside the house. Nobody came out.
Eventually, police went in the house to search for suspects. They encountered a

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locked bathroom door. Officers broke into the bathroom and saw one man
standing in the bathtub with Hoskins lying flat within it. Hoskins was sweating
profusely. He reacted lethargically to questions while police detained him in a
squad car and seemed to lose consciousness more than once. Medics
transported Hoskins to the hospital. Doctors medically cleared Hoskins a couple
of hours later.
Huang arrived on the scene shortly after officers and learned that
someone broke into his house. Huang owns two homes in the area and splits his
time between them. He uses the Beacon Hill home mostly as a commercial
marijuana growing facility. Huang also works at the Washington State
Convention Center in downtown Seattle. When Huang works a night shift at the
convention center, he sleeps at his second house. But when he works a day
shift at the convention center, he sleeps at the Beacon Hill home. Huang
testified that he sometimes sleeps in the Beacon Hill house “consecutively for a
whole month.”
On the day of the burglary, Huang worked an early shift at the convention
center then headed to his Beacon Hill house. He stayed there until around 8:00
p.m., then went to his second home to eat dinner and shower. No one was in the
house when he left it at 8:00 p.m. and no one had permission to enter it in his
absence. He returned to the Beacon Hill home around 10:30 p.m. to find it
“surrounded” by officers. There was a crowbar outside near the front door that
did not belong to him. When officers allowed Huang back inside his home, he
noticed damage to the security screen door, the front door, and the bathroom.

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Many of his things were in disarray and “mess[ed] around with.” Several
marijuana plants had been cut and put into large plastic bags, one of which
police found inside the bathroom.
On October 17, 2018, the State charged Hoskins with one count of
residential burglary. His attorneys moved to continue his case five times to
review exhibits and discovery, consult with Hoskins, conduct witness interviews,
“track” the codefendants’ cases, explore a “global negotiation” to resolve this
case and his other pending cases, and finally, because “the investigation needs
to be completed” and defense counsel was on vacation. The court granted the
continuances.
On June 17, 2019, the morning of trial, Hoskins’ attorney again moved to
continue. His attorney argued he needed more time to confer with the three
defense attorneys on Hoskins’ other pending cases to understand the impact
each case would have on the other and “to allow this defendant to receive
effective assistance of counsel by all three of his attorneys.” He also wanted to
continue to explore whether the attorneys could simultaneously resolve their
cases with the State, and he needed more time to interview Huang with help from
an interpreter. The trial court denied the motion to continue.
Hoskins asserted a “voluntary intoxication” defense at trial. A jury
convicted Hoskins of residential burglary. The court sentenced him to a
standard-range sentence of 74 months of confinement. Hoskins appeals.

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ANALYSIS
Trial Continuance
Hoskins argues the trial court abused its discretion and violated his
constitutional rights to a fair trial and the effective assistance of counsel by
denying his attorney’s request to continue trial. We disagree.
We review a trial court's decision to deny a continuance for manifest
abuse of discretion. State v. Downing, 151 Wn.2d 265, 272-73, 87 P.3d 1169
(2004). This same standard applies “even when it is argued that a refusal to
grant a continuance deprives a defendant of the right to due process and right to
representation.” State v. Quy Dinh Nguyen, 179 Wn. App. 271, 281, 319 P.3d 53
(2013). A trial court abuses its discretion when its decision is manifestly
unreasonable or based on untenable grounds or reasons. Quy Dinh Nguyen,
179 Wn. App. at 281-82. A trial court acts reasonably where its decision falls
within a range of acceptable choices. State v. Sisouvanh, 175 Wn.2d 607, 623,
290 P.3d 942 (2012) (citing State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638
(2003)).
A criminal defendant is not entitled to a continuance as a matter of right.
State v. Early, 70 Wn. App. 452, 457, 853 P.2d 964 (1993). In exercising
discretion to grant or deny a continuance, trial courts may consider many factors,
including surprise, diligence, redundancy, due process, materiality, and
maintenance of orderly procedure. Downing, 151 Wn.2d at 273 (citing State v.
Eller, 84 Wn.2d 90, 95, 524 P.2d 242 (1974)).

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“There are no mechanical tests to determine whether the denial of a
continuance inhibits a defense or otherwise deprives a defendant of a fair trial.”
State v. Kelly, 32 Wn. App. 112, 114, 645 P.2d 1146 (1982). When alleging that
the denial of a motion to continue violates constitutional due process rights, the
appellant must show either prejudice by the denial or that the result of the trial
would have likely been different if the court had granted the continuance. State
v. Tatum, 74 Wn. App. 81, 86, 871 P.2d 1123, review denied, 125 Wn.2d 1002,
886 P.2d 1134 (1994). We will presume prejudice if “the magnitude of the denial
makes it likely that no competent counsel could provide effective assistance.”
Quy Dinh Nguyen, 179 Wn. App. at 285.
Hoskins argues that the trial court abused its discretion and violated his
constitutional right to a fair trial because “it denied [his] counsel the time to
interview Mr. Huang” and “prevented counsel from thoroughly investigating the
facts and applicable law and providing effective assistance.” He claims the
court’s decision was particularly prejudicial because “Mr. Huang’s testimony
[was] material to the case.”
The record does not support Hoskins’ argument that the trial court denied
his counsel the time to interview Huang. The court arraigned Hoskins on his
residential burglary charge in October 2018. The trial court then granted five
continuances over a period of seven months for his attorney to review discovery,
investigate, negotiate, and complete “outstanding witness interviews.” When the
court granted the fourth continuance on April 5, 2019, it told defense counsel that
there would be “[n]o [f]urther [c]ontinuances.” Still, on May 3, 2019, Hoskins’

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attorney requested a fifth continuance because “the investigation needs to be
completed” and he was on vacation from May 30 to June 14. Despite its
previous admonition that there would be no more continuances, the court allowed
counsel another six weeks to prepare for trial.
On June 17, 2019, the morning of trial and eight months after counsel first
appeared to defend Hoskins, his attorney again moved to continue the trial. He
asked for a two-week continuance so he could interview Huang before trial.
When the court asked why counsel had not yet interviewed the witness, he
explained, “Partly, because for the last two weeks, I had been on vacation,” and
“part of the reason too, Your Honor, is that there is a . . . Cantonese interpreter to
interview the victim as well.” Counsel did not explain why he had not interviewed
Huang in the nearly eight months before his vacation or whether he made any
efforts before the day of trial to secure an interpreter for the interview.
On appeal, Hoskins argues that “[b]ecause of the complicated nature of
the four interrelated cases,” his attorney “was unable to arrange for an interpreter
and secure a time” to interview the witness. But again, Hoskins does not explain
how the “complicated nature” of his “interrelated cases” worked to delay the
interview of Huang, who was not a witness in any of Hoskins’ other cases.
Hoskins’ claim that the court denied him time to interview Huang lacks merit.
Relying on State v. Burri, 87 Wn.2d 175, 550 P.2d 507 (1976), Hoskins
next argues that he was denied effective assistance of counsel because the court
prevented his attorney from “interviewing key witnesses before trial.” In Burri, the
State charged the defendant with theft but the defendant produced alibi

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witnesses. Burri, 87 Wn.2d at 176. The defense witnesses were “ ‘interrogated
[by the prosecutor] at the Special Inquiry Proceeding’ ” where defense lawyers
were not present. Burri, 87 Wn.2d at 179. The prosecutor then instructed the
witnesses “ ‘not to discuss their testimony therein with any other person.’ ” Burri,
87 Wn.2d at 179. Because the government interfered with the defendant’s
access to key witnesses, it violated his constitutional right to counsel and
compulsory process. Burri, 87 Wn.2d at 182-83.
Here, the government did not interfere with Hoskins’ ability to interview
Huang. Indeed, Hoskins did not try to interview Huang over the eight months
before trial. Nor did he seek to interview Huang after the court denied his motion
to continue the trial.1 Hoskins also inflates the value of Huang’s testimony.
While Huang owned the Beacon Hill home Hoskins broke into, he did not witness
the burglary and could not identify any of the suspects. Huang’s testimony was
brief and mostly cumulative of the testimony of other witnesses. His testimony
was also unrelated to Hoskins’ voluntary intoxication defense.
Finally, Hoskins fails to identify how his trial would have likely been
different had the court granted his motion to continue. He suggests that an
interview of Huang may have revealed more information about Huang’s use of
the house as a marijuana business. But the certification for determination of
probable cause provided to Hoskins in discovery specifically identified Huang’s
1 We note that the State called Huang to testify just minutes before the lunch break on
the second day of trial. After a few general questions about Huang’s use of the Beacon Hill
property, the court recessed for lunch. With the witness, the interpreter, and both the prosecutor
and defense counsel present, Hoskins had the opportunity for at least a brief interview over the
90-minute lunch break.

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house as a marijuana grow facility.2 And at trial, Hoskins chose not to question
Huang about how he used the home. Instead, he pursued a defense of voluntary
intoxication. The trial court’s decision to deny Hoskins’ motion to continue was
within the range of acceptable choices and did not deprive Hoskins of a
constitutionally fair trial.
Sufficiency of the Evidence
Hoskins argues the State produced insufficient evidence that he entered
or remained unlawfully in a “dwelling.” We disagree.
When reviewing a challenge to the sufficiency of the evidence, we must
determine whether, after examining the facts in the light most favorable to the
State, any rational trier of fact could have found the essential elements of the
charged crime beyond a reasonable doubt. State v. Joy, 121 Wn.2d 333, 338,
851 P.2d 654 (1993); State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068
(1992). Such a challenge admits the truth of the State’s evidence and all
reasonable inferences from it. Salinas, 119 Wn.2d at 201. Circumstantial
evidence is as equally reliable as direct evidence. State v. Delmarter, 94 Wn.2d
634, 638, 618 P.2d 99 (1980).
“A person is guilty of residential burglary if, with intent to commit a crime
against a person or property therein, the person enters or remains unlawfully in a
dwelling other than a vehicle.” RCW 9A.52.025(1). RCW 9A.04.110(7) defines a
“dwelling” as “any building or structure . . . which is used or ordinarily used by a
person for lodging.” The question of what constitutes a “dwelling” is primarily a
2 Pretrial, Hoskins agreed the certification “sufficiently sets out the facts of this case.”

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fact question for the jury. State v. McDonald, 123 Wn. App. 85, 90-91, 96 P.3d
468 (2004).
Hoskins contends the evidence at trial was insufficient to show Huang’s
home was a “dwelling” because Huang used the home mostly for growing
marijuana, ”not as a dwelling or for lodging.” Citing State v. Joseph, 189 Wn.2d
645, 405 P.3d 993 (2017), Hoskins argues that “[a] space is not considered a
dwelling simply because a person slept there.” In Joseph, police arrested a
homeless man for prowling vehicles after he broke into a car and fell asleep
inside. Joseph, 189 Wn.2d at 646-47. In a footnote, the Supreme Court rejected
the State’s argument that the vehicle also amounted to a “dwelling” because
Joseph used it as “lodging” to sleep in. Joseph, 189 Wn.2d at 653 n.4. Unlike in
Joseph, the court here tasked the jury with deciding whether Huang’s home, not
his car, was a dwelling.
This case is more like State v. McPherson, 186 Wn. App. 114, 344 P.3d
1283 (2015). In McPherson, Division Two of this court found sufficient evidence
of a “dwelling” existed where the victim used a portion of a building for lodging
and used the rest of the building for commercial purposes or left it vacant.
McPherson, 186 Wn. App. at 118-19. Division Two concluded a jury could
reasonably find that both uses were contained within one building and that the
resident had unlimited access to all the various areas inside. McPherson, 186
Wn. App. at 119. Here, the evidence showed that Huang’s home had multiple
levels with laundry and bathroom facilities as well as partitioned areas. Huang
testified that the house had separate rooms, including a sitting room with a sofa

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where he slept every time he was not working a night shift. At times, he slept
there continually for a month. Viewing the evidence in the light most favorable to
the State, a reasonable trier of fact could conclude Huang’s Beacon Hill home
was a “dwelling.”
We affirm Hoskins’ conviction for one count of residential burglary.
WE CONCUR: