State Of Washington, V. Anthony Joseph

• Court: Court of Appeals of Washington
• Decided: May 16, 2022
• Docket: 82726-0
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

THE STATE OF WASHINGTON, No. 82726-0-I

Respondent,

v. UNPUBLISHED OPINION

ANTHONY JOSEPH,

Appellant.

PER CURIAM — Anthony Joseph appeals the judgment and sentence

entered following his conviction for burglary in the first degree, assault in the

fourth degree, and criminal trespass in the first degree. Joseph contends that his

convictions for both criminal trespass in the first degree and burglary in the first

degree violate constitutional double jeopardy principles.

The State concedes that, as charged and prosecuted in this case,

Joseph’s convictions for criminal trespass in the first degree and burglary in the

first degree violate double jeopardy. Under the “same evidence” rule, a

defendant’s double jeopardy rights are violated “if he or she is convicted of

offenses that are identical both in fact and law.” State v. Calle, 125 Wn.2d 769,

777, 888 P.2d 155 (1995). Although unlawful entry or remaining is an express

statutory element of both criminal trespass and burglary, knowledge that one’s

entry or remaining is unlawful is an express statutory element of only criminal

trespass, not burglary. RCW 9A.52.070(1), .020(1).

Citations and pin cites are based on the Westlaw online version of the cited material. No. 82726-0-I/2

Here, however, the State charged Joseph with a license revocation

burglary. Because the State cannot prove this category of burglary without

proving that the defendant knew his presence was unlawful, the State concedes

that punishing Joseph for both criminal trespass and burglary violated double

jeopardy. See State v. Moreno, 198 Wn.2d 737, 756, 499 P.3d 198 (2021)

(acknowledging category of burglary cases in which revocation of a license or

privilege to enter turns the defendant’s presence from lawful to unlawful). When

a defendant has been twice convicted for a single act, in violation of double

jeopardy principles, the trial court must vacate the conviction for the less serious

offense. State v. Weber, 159 Wn.2d 252, 269, 149 P.3d 646 (2006). We accept

the concession of error and remand the matter to the trial court with directions to

vacate the criminal trespass conviction.

Remanded for further proceedings consistent with this opinion.

WE CONCUR: