?0i5SE1P 1L* & ^ 1°
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 71749-9-1 Respondent, DIVISION ONE v.
MITCHELL HENRY RAMM, UNPUBLISHED OPINION
Appellant. FILED: Septembers, 2015
Becker, J. —A defendant is entitled to a jury instruction on a lesser
included offense when the evidence supports an inference that only the lesser
crime was committed. In this case, the trial court did not abuse its discretion
when it ruled that a lesser included offense instruction was not warranted
because no affirmative evidence raised an inference that Mitchell Ramm
committed criminal trespass and not burglary. The use of written peremptory
challenges during jury selection did not violate Ramm's right to a public trial. We
affirm.
Around 10:00 p.m. on a Sunday night in January 2013, several police
officers arrived to investigate a disturbance at a high-rise building that was under
construction in the Belltown neighborhood in downtown Seattle. Approximately a
dozen floors of the building were partially complete, and there were no exterior
walls. At the edge of each floor, there was a safety railing consisting of two
cables. A six-foot fence with a foot of barbed wire on top surrounded the No. 71749-9-1/2
construction site on all sides. There were signs on the fence warning against
entry approximately every 20 feet.
When the officers arrived, they heard a male voice yelling and crashing
sounds from items being jettisoned from one of the upper floors. When police
officers shone a spotlight into the construction area, they could see a man on the
seventh or eighth floor. The officers could not find an entry point and used bolt
cutters to cut a lock on a gate to enter the construction area. They then
proceeded up makeshift stairs that were littered with debris and construction
materials.
When the officers reached the eighth floor, Mitchell Ramm was standing
on the landing holding a three-foot-long piece of rebar with a hook on the end
over his head. Several officers drew their weapons and ordered Ramm to drop
the rebar. Ramm did not. He told the officers to drop their guns. An officer
attempted to use a stun gun against Ramm, but it could not penetrate his heavy
winter coat. Ramm slammed the rebar on a drafting table, "screamed
something," and ran "full tilt" towards the edge of the building. Officers feared
Ramm would jump off the building. However, when he reached the edge, Ramm
climbed over the cable safety railing and stood on a narrow ledge that was
approximately four inches wide.
One of the officers approached Ramm and tried to encourage him to climb
back over the railing. He refused. Soon after, officers specializing in hostage
negotiation arrived and took over discussions with Ramm. Finally, at around No. 71749-9-1/3
5:00 a.m. the following morning, Ramm climbed back over the cable fence and
surrendered.
The building sustained a significant amount of property damage during the
incident. On two floors, there was spray painted graffiti on exposed concrete
areas. The graffiti included various numbers, symbols, and words, such as
"Hiram Ulysses Simson Grant," "Jesus Christ," and "Infadel." Many items such
as toolboxes, lightfixtures, rebar, and fire extinguishers were damaged, having
been thrown down the elevator shaft and stair shaft. The color of the graffiti
matched a symbol that was spray painted on Ramm's coat.
The State charged Ramm with burglary in the second degree, a felony,
and obstructing a law enforcement officer and malicious mischief in the third
degree, both gross misdemeanors. After a period of competency restoration, the
case proceeded to trial. Ramm was present during a portion of jury selection, but
then refused to attend the trial.
Some witnesses described Ramm as speaking unintelligibly during the
encounter. One officer said Ramm was "rambling" and not making sense and
another witness said he engaged in "gibberish adult talk about the end of the
world and conspiracies." One officer said that over the course of the night,
Ramm appeared to "come down" from some type of "mental crisis."
Nevertheless, Ramm did not assert a defense of insanity or diminished capacity
and he presented no expert testimony about his mental health status.
After the State presented its evidence, the defense asked the court to
instruct the jury on criminal trespass in addition to the charged offense of No. 71749-9-1/4
burglary. The trial court determined that the evidence did not support an
instruction on criminal trespass as a lesser included offense. The jury found
Ramm guilty as charged.
LESSER INCLUDED INSTRUCTION
Ramm challenges the trial court's refusal to instruct the jury on the lesser
included offense of criminal trespass.
Whether a defendant is entitled to a lesser included instruction is analyzed
under the two-pronged test outlined in State v. Workman, 90 Wn.2d 443, 447-48,
584 P.2d 382 (1978). First, each element of the lesser offense must be a
necessary element of the charged offense (legal prong). State v. Berlin, 133
Wn.2d 541, 545-46, 947 P.2d 700 (1997). Second, the evidence must raise an
inference that only the lesser offense was committed to the exclusion of the
charged offense (factual prong). State v. Fernandez-Medina, 141 Wn.2d 448,
455, 6 P.3d 1150 (2000).
A person commits second degree burglary 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 in the building. RCW 9A.52.030. A first
degree criminal trespass conviction, on the other hand, requires proof that the
defendant knowingly entered or remained unlawfully in a building and does not
require additional intent to commit a crime. RCW 9A.52.070(1).
The parties agree that the legal prong of the Workman test is met because
the elements of criminal trespass are necessary elements of the charged
offense, burglary in the second degree. See State v. Soto, 45 Wn. App. 839, No. 71749-9-1/5
841, 727 P.2d 999 (1986). The issue, then, is whether the evidence supports an
inference that the defendant committed the lesser crime rather than the greater crime.
When analyzing the factual prong, we view the evidence in the light most
favorable to the party who requested the instruction at trial. State v. Henderson.
182 Wn.2d 734, 742, 344 P.3d 1207 (2015); Fernandez-Medina. 141 Wn.2d at
455-56. The evidence "must affirmatively establish the defendant's theory of the
case—it is not enough that the jury might disbelieve the evidence pointing to
guilt." Fernandez-Medina. 141 Wn.2d at 456.
Ramm contends that our review of the trial court's decision is de novo
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?0i5SE1P 1L* & ^ 1°
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 71749-9-1 Respondent, DIVISION ONE v.
MITCHELL HENRY RAMM, UNPUBLISHED OPINION
Appellant. FILED: Septembers, 2015
Becker, J. —A defendant is entitled to a jury instruction on a lesser
included offense when the evidence supports an inference that only the lesser
crime was committed. In this case, the trial court did not abuse its discretion
when it ruled that a lesser included offense instruction was not warranted
because no affirmative evidence raised an inference that Mitchell Ramm
committed criminal trespass and not burglary. The use of written peremptory
challenges during jury selection did not violate Ramm's right to a public trial. We
affirm.
Around 10:00 p.m. on a Sunday night in January 2013, several police
officers arrived to investigate a disturbance at a high-rise building that was under
construction in the Belltown neighborhood in downtown Seattle. Approximately a
dozen floors of the building were partially complete, and there were no exterior
walls. At the edge of each floor, there was a safety railing consisting of two
cables. A six-foot fence with a foot of barbed wire on top surrounded the No. 71749-9-1/2
construction site on all sides. There were signs on the fence warning against
entry approximately every 20 feet.
When the officers arrived, they heard a male voice yelling and crashing
sounds from items being jettisoned from one of the upper floors. When police
officers shone a spotlight into the construction area, they could see a man on the
seventh or eighth floor. The officers could not find an entry point and used bolt
cutters to cut a lock on a gate to enter the construction area. They then
proceeded up makeshift stairs that were littered with debris and construction
materials.
When the officers reached the eighth floor, Mitchell Ramm was standing
on the landing holding a three-foot-long piece of rebar with a hook on the end
over his head. Several officers drew their weapons and ordered Ramm to drop
the rebar. Ramm did not. He told the officers to drop their guns. An officer
attempted to use a stun gun against Ramm, but it could not penetrate his heavy
winter coat. Ramm slammed the rebar on a drafting table, "screamed
something," and ran "full tilt" towards the edge of the building. Officers feared
Ramm would jump off the building. However, when he reached the edge, Ramm
climbed over the cable safety railing and stood on a narrow ledge that was
approximately four inches wide.
One of the officers approached Ramm and tried to encourage him to climb
back over the railing. He refused. Soon after, officers specializing in hostage
negotiation arrived and took over discussions with Ramm. Finally, at around No. 71749-9-1/3
5:00 a.m. the following morning, Ramm climbed back over the cable fence and
surrendered.
The building sustained a significant amount of property damage during the
incident. On two floors, there was spray painted graffiti on exposed concrete
areas. The graffiti included various numbers, symbols, and words, such as
"Hiram Ulysses Simson Grant," "Jesus Christ," and "Infadel." Many items such
as toolboxes, lightfixtures, rebar, and fire extinguishers were damaged, having
been thrown down the elevator shaft and stair shaft. The color of the graffiti
matched a symbol that was spray painted on Ramm's coat.
The State charged Ramm with burglary in the second degree, a felony,
and obstructing a law enforcement officer and malicious mischief in the third
degree, both gross misdemeanors. After a period of competency restoration, the
case proceeded to trial. Ramm was present during a portion of jury selection, but
then refused to attend the trial.
Some witnesses described Ramm as speaking unintelligibly during the
encounter. One officer said Ramm was "rambling" and not making sense and
another witness said he engaged in "gibberish adult talk about the end of the
world and conspiracies." One officer said that over the course of the night,
Ramm appeared to "come down" from some type of "mental crisis."
Nevertheless, Ramm did not assert a defense of insanity or diminished capacity
and he presented no expert testimony about his mental health status.
After the State presented its evidence, the defense asked the court to
instruct the jury on criminal trespass in addition to the charged offense of No. 71749-9-1/4
burglary. The trial court determined that the evidence did not support an
instruction on criminal trespass as a lesser included offense. The jury found
Ramm guilty as charged.
LESSER INCLUDED INSTRUCTION
Ramm challenges the trial court's refusal to instruct the jury on the lesser
included offense of criminal trespass.
Whether a defendant is entitled to a lesser included instruction is analyzed
under the two-pronged test outlined in State v. Workman, 90 Wn.2d 443, 447-48,
584 P.2d 382 (1978). First, each element of the lesser offense must be a
necessary element of the charged offense (legal prong). State v. Berlin, 133
Wn.2d 541, 545-46, 947 P.2d 700 (1997). Second, the evidence must raise an
inference that only the lesser offense was committed to the exclusion of the
charged offense (factual prong). State v. Fernandez-Medina, 141 Wn.2d 448,
455, 6 P.3d 1150 (2000).
A person commits second degree burglary 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 in the building. RCW 9A.52.030. A first
degree criminal trespass conviction, on the other hand, requires proof that the
defendant knowingly entered or remained unlawfully in a building and does not
require additional intent to commit a crime. RCW 9A.52.070(1).
The parties agree that the legal prong of the Workman test is met because
the elements of criminal trespass are necessary elements of the charged
offense, burglary in the second degree. See State v. Soto, 45 Wn. App. 839, No. 71749-9-1/5
841, 727 P.2d 999 (1986). The issue, then, is whether the evidence supports an
inference that the defendant committed the lesser crime rather than the greater crime.
When analyzing the factual prong, we view the evidence in the light most
favorable to the party who requested the instruction at trial. State v. Henderson.
182 Wn.2d 734, 742, 344 P.3d 1207 (2015); Fernandez-Medina. 141 Wn.2d at
455-56. The evidence "must affirmatively establish the defendant's theory of the
case—it is not enough that the jury might disbelieve the evidence pointing to
guilt." Fernandez-Medina. 141 Wn.2d at 456.
Ramm contends that our review of the trial court's decision is de novo
because the court committed an error of law in refusing to provide the instruction.
The trial court's ruling was based upon its determination that there was no
evidentiary basis to give the lesser included instruction. Our case law is clear
and well established that where, as here, the court denies a request for a lesser
included instruction based upon a determination that the evidence does not
support the inference the defendant committed only the lesser crime, this is a
ruling under the factual prong. And we review such rulings for an abuse of
discretion. See Henderson. 182 Wn.2d at 743; State v. Walker. 136 Wn.2d 767,
771-72, 966 P.2d 883 (1998). A trial court abuses its discretion if its decision "is
manifestly unreasonable or based upon untenable grounds or reasons." State v.
Powell. 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
Ramm's argument, here and below, hinges on the difference in the mens
rea required for burglary (intent) and that required for trespass (knowledge). No. 71749-9-1/6
Ramm contends that the prominent signs on the fence, locked gates, and barbed
wire supplied evidence of his knowledge that he was entering the building site
unlawfully. He argues that the evidence suggesting he had a mental health
diagnosis tended to negate the higher mental state of intent to commit a crime
that was required to find him guilty of burglary. Thus, Ramm contends that the
jury could have found that he knowingly trespassed, but without intent to commit
any crime. We disagree.
Whatever Ramm's intent when he entered the building site, he did not
simply remain on the premises. He painted graffiti and destroyed property.
There is no affirmative evidence in the record that his mental state was
diminished to the point that he did not intend to commit these criminal acts. The
trial court did not abuse its discretion in refusing to instruct the jury on criminal
trespass in the first degree.
PUBLIC TRIAL
Ramm contends that the exercise of peremptory challenges in writing
violated his constitutional right to a public trial and the public's right to open
proceedings.
This argument is foreclosed by our Supreme Court's recent decision in
State v. Love, No. 89619-4, 2015 WL 4366419 (Wash. July 16, 2015).
Here, the record reflects that the parties exercised peremptory challenges
in open court, and the court announced the stricken jurors in numerical order, without revealing which party struck particular jurors. The information about how the challenges were exercised is in the record because the prosecutor later read
6 No. 71749-9-1/7
on the record the numbers of the jurors who were stricken and identified which
party struck each juror. Because the courtroom was not closed and the
information about how the strikes were exercised was available for public
scrutiny, the procedure did not violate Ramm's right to a public trial.
Finally, although Ramm has submitted additional grounds for review, the
precise nature of the errors he alleges is unclear. See RAP 10.10(c) (appellate
court will decline to consider issues in statement of additional grounds for review
ifthey do not "inform the court of the nature and occurrence of alleged errors").
His allegations also appear to concern matters outside the record and cannot be
considered on appeal.
Affirmed.
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WE CONCUR:
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