IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 87815-8-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
ARTHUR KEMRAN ARAKELOV,
Appellant.
HAZELRIGG, C.J. — Arthur Arakelov appeals from the judgment and sentence entered after a jury convicted him of two counts of burglary in the second degree and one count of reckless burning in the first degree. He asserts that insufficient evidence was adduced at trial to support those convictions, presents numerous assignments of error predicated on other alleged constitutional violations that he raises for the first time on appeal, and urges us to decline to follow unanimous Washington Court of Appeals decisional authority. Because he fails to establish any basis for reversal, we affirm.
FACTS
In March 2023, the State charged Arthur Arakelov with one count of arson in the first degree and specifically alleged that he knowingly and maliciously caused a fire while on premises owned by the Seattle Boat Company. In June 2023, the State filed a first amended information that added one count of reckless burning in the first degree for the fire at the Seattle Boat Company premises and
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one count of burglary in the second degree based on its allegation that he entered and remained unlawfully in a building owned by Chihuly Studios with the intent to commit a crime against property therein. More than a year later, in September 2024, the State filed a second amended information that added another count of burglary in the second degree based on its contention that he entered and remained unlawfully in the Seattle Boat Company premises for the purpose of committing a crime therein.
A six-day jury trial commenced the following month, with the State presenting its case-in-chief, including 20 witnesses and numerous exhibits, over four and a half of those trial days. One of the deputy prosecuting attorneys (DPA) who tried the case indicated to the jury that the State’s theory of the case was that on the late evening and early morning in question, Arakelov was “walking around Lake Union causing mayhem and maliciously destroying property.” With regard to the charge of burglary in the second degree in the Chihuly Studio building, the State asserted that the evidence would show that Arakelov unlawfully broke into the glassblowing studio with an intention to cause a nuisance and property damage, as demonstrated by his punching through window glass to enter the second floor of the building, barricading doors, trailing blood on the drywall, and damaging a rooftop furnace exhaust fan. With regard to the other charge of burglary in the second degree, the DPA explained the State’s theory that Arakelov, after leaving the Chihuly building, unlawfully entered the fenced-in Seattle Boat Company premises with an intention to cause property damage and did so by setting fire to numerous boats. As to the charge of reckless burning in the first
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degree, the DPA asserted that Arakelov knowingly caused the fire as evidenced by, among other things, the fact that he was the only person in the vicinity, the fire’s ignition and location coincided with his climbing up into a boat rack, he climbed down from the boat rack after the fire started and was later found in a boat where a lighter that could have been used to start such a fire was recovered, and the State’s experts concluded that it was an intentionally set fire.
Arakelov’s theory of his defense was denial. As presented in opening statements and closing argument, he asserted that the State could not and did not carry its burden of proof against him. He conceded that he “trespassed” in the Chihuly Studio building and the Seattle Boat Company premises, and with regard to the Chihuly Studio, he also conceded that he broke a window in order to gain access to the building, entered the building, barricaded doors and left blood behind, and took a panel off of one of the fans on the roof that was later found to be damaged; he nevertheless argued that the evidence supported that he engaged in that behavior not with the intent to commit a crime in the building like property damage but, rather, as part of creating shelter for himself on a cold, wet night in March. 1 During closing argument, defense counsel conceded, based on Arakelov’s own testimony, that he “probably squeezed through a fence, or something,” in order to enter the premises of the Seattle Boat Company but argued that the premises “probably [did not] qualify as a building for the purposes of the statute” and he did not commit a crime on those premises because the State did not meet its burden of proof that he intentionally started the fire in question.
1 Arakelov did not elect to argue a necessity defense to the charges.
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On the second trial day, during his cross-examination of a law enforcement officer, Arakelov requested to introduce an exhibit that contained a video and audio excerpt taken from a responding officer’s body-worn camera (BWC) footage of Arakelov’s physical condition at the time of his arrest. The State sought to exclude the exhibit but later offered, in the alternative, to play the excerpt without the audio. The court admitted a redacted version of the exhibit without the audio.
The State rested its case on the fifth day of trial, and Arakelov presented his case-in-chief during the remainder of that trial day and into the next, calling an expert witness and himself to testify. Arakelov then presented a motion to dismiss based on the insufficiency of the evidence presented at trial, which the court denied.
Thereafter, during a colloquy on the jury instructions, Arakelov requested that the court instruct the jury that as an alternative to the burglary counts, they could convict him of a lesser included charge of criminal trespass in the first degree. The State objected, the court heard argument and denied his request.
The court then issued its instructions to the jury, and the parties presented closing argument. During Arakelov’s closing, the State objected to several lines of argument, which the court sustained.
During deliberations, the jury submitted a single inquiry with a pair of questions to the court. The court, with both parties’ agreement, responded by instructing the jury to reread the instructions provided to them. Later that day, the jury returned a verdict that convicted Arakelov of the two burglary charges and the reckless burning charge but acquitted him of arson in the first degree. The
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sentencing court later imposed a term of confinement of 16 months of incarceration.
Arakelov timely appealed.
ANALYSIS
I. Scope of Review As a threshold matter, Arakelov either failed to preserve at trial or inadequately briefed on appeal certain issues to which he now assigns error. We address each issue in turn.
Our Supreme Court has declared that
[a]s a general rule, appellate courts will not consider issues raised for the first time on appeal. RAP 2.5(a). However, a claim of error may be raised for the first time on appeal if it is a “manifest error affecting a constitutional right”. RAP 2.5(a)(3); State v. Scott, 110 Wn.2d 682, 686-87, 757 P.2d 492 (1988); State v. Lynn, 67 Wn. App.
339, 342, 835 P.2d 251 (1992). As we recognized in Scott, constitutional errors are treated specially under RAP 2.5(a) because they often result in serious injustice to the accused and may adversely affect public perceptions of the fairness and integrity of judicial proceedings. Scott, 110 Wn.2d at 686-87. On the other hand, “permitting every possible constitutional error to be raised for the first time on appeal undermines the trial process, generates unnecessary appeals, creates undesirable retrials and is wasteful of the limited resources of prosecutors, public defenders and courts”.
Lynn, 67 Wn. App. at 344.
State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995). Indeed,
[t]he rule reflects a policy of encouraging the efficient use of judicial resources. The appellate courts will not sanction a party’s failure to point out at trial an error which the trial court, if given the opportunity, might have been able to correct to avoid an appeal and a consequent new trial.
Scott, 110 Wn.2d at 685.
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A. Failure To Preserve Issues and Invited Error in Trial Court Again, “[u]nder most circumstances, issues not raised at the trial court have not been preserved for consideration on appeal.” State v. Bell, 26 Wn. App. 2d 821, 842, 529 P.3d 448 (2023); RAP 2.5(a). Several specific applications of this general rule apply to the matter before us. For instance, “‘[t]he failure to make a timely objection to the admission of evidence precludes appellate review.’” State v. Leer, 33 Wn. App. 2d 582, 597, 561 P.3d 761 (2024) (quoting State v. O’Neill, 91 Wn. App. 978, 993, 967 P.2d 985 (1998)), review denied, 4 Wn.3d 1023 (2025). Similarly, when defense counsel fails to make a timely objection to the prosecutor’s line of questioning and then raises the issue themselves, any error in the introduction of such evidence is waived. State v. Atkinson, 19 Wn. App. 107, 112, 575 P.2d 240 (1978). Furthermore, “[a] party may only assign error in the appellate court on the specific ground of the evidentiary objection made at trial.” State v. Quigg, 72 Wn. App. 828, 836, 866 P.2d 655 (1994). 2 Assignment of error to conduct that trial defense counsel invited or materially participated in cannot be raised for the first time on appeal, including alleged errors of constitutional magnitude. State v. McLoyd, 87 Wn. App. 66, 70, 939 P.2d 1255 (1997).
Arakelov asserts, for the first time on appeal, that the trial court’s admission of certain firefighter and police officer testimony deprived him of both his constitutional right to remain silent and to trial by jury. If any error occurred, Arakelov’s trial counsel either failed to preserve or invited such error. His appellate
2 “The trial court must be informed of the parties’ contentions and theories concerning
evidence offered, so that the court may rule on such contentions, consider such theories, and thus avoid committing error.” Quigg, 72 Wn. App. at 836.
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counsel’s briefing concedes that his trial counsel did not object to the challenged testimony and also that his trial counsel cross-examined those witnesses regarding the testimony to which he assigns error on appeal. Consequently, the absence of a timely objection by his trial counsel to such testimony waived his right to its appellate review and, to the extent that any portion thereof was erroneously admitted, such error was invited by his trial counsel on cross-examination. Therefore, his assertion fails.
Arakelov next contends that the trial court erred when it responded to the jury inquiry by instructing the jury to re-read their instructions. The record reflects, however, and his appellate counsel concedes, that his trial counsel expressly agreed to the response provided by the trial court. The error alleged was therefore invited by his trial counsel, and his contention on appeal is thereby precluded from review.
B. Insufficiently Briefed Assignments of Error Arakelov raises other assignments of error for the first time on appeal that he avers are of constitutional magnitude. However, for the reasons discussed infra, he has failed to carry his burden to establish an entitlement to appellate consideration of those claims.
We have stated that
[w]e may decide to review an error that was not raised in the trial court if the appellant establishes that it is a manifest error that affects a constitutional right. RAP 2.5(a)(3). To meet the burden imposed by RAP 2.5(a)(3), the appellant must show that the error was manifest, in that they were actually prejudiced, and the error is truly of constitutional import. In re Pers. Restraint of Meredith, 191 Wn.2d 300, 309, 422 P.3d 458 (2018).
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Leer, 33 Wn. App. 2d at 597-98 (emphasis added). “Stated another way, the appellant must ‘identify a constitutional error and show how the alleged error actually affected the [appellant]’s rights at trial.’” State v. O’Hara, 167 Wn.2d 91, 97-98, 217 P.3d 756 (2009) (alteration in original) (quoting State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007)). This rule requires the defendant to “make a plausible showing that the error resulted in actual prejudice, which means that the claimed error had practical and identifiable consequences in the trial.” State v. Lamar, 180 Wn.2d 576, 583, 327 P.3d 46 (2014) (emphasis added). Hence, “it is this showing of actual prejudice that makes the error ‘manifest,’ allowing appellate review.” McFarland, 127 Wn.2d at 333. As instructed by our Supreme Court,
[t]he requirements under RAP 2.5(a)(3) should not be confused with the requirements for establishing an actual violation of a constitutional right or for establishing lack of prejudice under a harmless error analysis if a violation of a constitutional right has occurred. The purpose of the rule is different; RAP 2.5(a)(3) serves a gatekeeping function that will bar review of claimed constitutional errors to which no exception was made unless the record shows that there is a fairly strong likelihood that serious constitutional error occurred.
Lamar, 180 Wn.2d at 583 (emphasis added).
In addition, RAP 10.3(a)(6) requires that an appellant’s brief contain the “argument in support of the issues presented for review, together with citations to legal authority and references to relevant parts of the record.” (Emphasis added.) We do not consider conclusory statements unsupported by meaningful analysis. See State v. Dugan, 36 Wn. App. 2d 765, 779-80, 587 P.3d 487 (2026).
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1. Ineffective Assistance of Counsel Arakelov asserts that he received ineffective assistance of counsel (IAC)
due to his trial defense counsel’s failure to object to the testimony detailed in Section II.A, supra, and based on his counsel’s handling of the trial court’s response to the jury questions also described in that section. He does not adequately support either of these assertions.
In order to prevail on an IAC claim, a defendant must establish both deficient performance and prejudice arising therefrom. Strickland v. Washington, 466 U.S. 668, 687 (1984). We apply a “strong presumption that counsel’s performance was reasonable” and that presumption is not overcome if “counsel’s conduct can be characterized as legitimate trial strategy or tactics.” State v. Kyllo, 166 Wn.2d 856, 862-63, 215 P.3d 177 (2009). Our inquiry does not consider whether counsel pursued the best strategy or one most likely to succeed, only whether the conduct underlying the IAC challenge could be deemed a reasonable tactical decision. See Strickland, 466 U.S. at 689; State v. Grier, 171 Wn.2d 17, 42, 246 P.3d 1260 (2011); State v. Hoffman, 116 Wn.2d 51, 112, 804 P.2d 577 (1991). “To establish the prejudice prong, the defendant must ‘prove that there is a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceedings would have been different.’” State v. Roberts, 32 Wn. App. 2d 571, 595-96, 553 P.3d 1122 (2024) (quoting Kyllo, 166 Wn.2d at 862), aff’d, 5 Wn.3d 222, 572 P.3d 1191 (2025). Where a claim of IAC rests on a failure to object, the appellant carries the burden to establish that such objection would have been granted. State v. Vazquez, 198 Wn.2d 239, 248, 494 P.3d 424 (2021).
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a. Failure To Object to Testimony Arakelov first argues that defense counsel was ineffective for failing to object to testimony that he claims constituted improper opinion evidence but does not present sufficient analysis of the relevant test. Instead, he relies on conclusory statements and a line of argument contending that because the trial court sustained one of his trial counsel’s objections to certain testimony, it would have sustained all such objections that he argues his trial counsel should have made. This is plainly insufficient to establish, on the record before us, that the objection he now claims was required would have been sustained, much less a reasonable probability that, but for his counsel’s purportedly deficient performance, the outcome of the trial would have changed. Critically, Arakelov asserts in his opening brief that while his trial counsel “cross-examined the State’s witnesses about their conclusions based on the assertions of rights, counsel could have circumvented the entire problem by objecting to testimony at all.” Such framing is a tacit admission that trial counsel opted to address the testimony in question by way of cross-examination instead of an objection, which necessarily constitutes a tactical decision. Arakelov has not overcome the presumption of effective performance on this point, and we decline to consider this assignment of error further.
b. Failure To Propose Different Answer to Jury Question Arakelov also contends that he received IAC when his attorney agreed to the trial court’s proposed response to the jury questions that asked, “Is trespassing
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the boats after having trespassed the SBC [(Seattle Boat Company)] building account [sic] as the crime committed within the building? Does a trespass of the building into a trespass of a boat account [sic] as a crime of burglary?” He asserts “the correct answer to the jury question was ‘no’” and that counsel should have requested the court respond by providing supplemental instruction. (Formatting omitted.)
Arakelov does not present adequate analysis for us to reach the merits of these contentions. Regarding deficient performance, he does not argue, much less establish, that the trial court would have agreed with his trial counsel, adopted his specific request, and responded accordingly. Rather, the record reflects that the court intended to give its usual response to the jury; to re-read its instructions. 3 He offers nothing more than a parenthetical in a citation that reads “no legitimate strategy for lawyer to agree to tell jurors to re-read the instructions where the question showed they misunderstood the law.” Nor does he demonstrate that asking the jury to re-read the court’s instructions, when such instructions went unchallenged at trial and on appeal, would have changed the outcome of the trial. As such, we decline to analyze Arakelov’s assertion of IAC on this basis.
3 Arakelov nevertheless somewhat vaguely asserts that it was reasonably probable that
the jury would not have convicted him of the burglary charge because, according to his appellate counsel, “[t]he jurors indisputably focused on Arakelov’s testimony that he was merely looking to find a quiet place to sleep when he entered the boatyard” and rejected “the State’s theory that Arakelov entered the boatyard with the goal of burning it down.” He does not present any citation to the record in support of this “indisputable” notion, and his conclusory statement fails to carry his burden on appeal.
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2. Claimed Violation of “Right To Present a Defense”
Arakelov also asserts, for the first time on appeal, that the trial court’s evidentiary ruling that granted his request to admit certain body worn camera footage but excluded the audio of that footage deprived him of the “right to present a defense.” He does not adequately support this assertion.
The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution guarantee a defendant’s rights to compulsory process and to confront the witnesses against them. We have noted that “[c]ourts and litigants often refer to these rights, collectively, as the ‘right to present a defense,’ although this phrase does not appear in our state or federal constitutions.” State v. Bedada, 13 Wn. App. 2d 185, 193 n.2, 463 P.3d 125 (2020).
Properly raised, contentions that evidentiary rulings violated a defendant’s constitutional “right to present a defense” are reviewed pursuant to a two-step process, wherein appellate courts first review the challenged evidentiary rulings under an abuse of discretion standard, then courts review de novo whether such whether such rulings violate a defendant’s constitutional “right to present a defense.” State v. Arndt, 194 Wn.2d 784, 797-812, 453 P.3d 696 (2019).
As explained supra, the DPA called Seattle Police Department (SPD)
Officer Brian Thomas to testify during which he described his arrest of Arakelov and the State played a portion of his BWC footage prior to that arrest. 4 The following trial day, before the State was set to resume its direct examination of
4 Thomas described that Arakelov’s arms were stiff and cold, he was shirtless and wearing pants but not wearing socks or shoes.
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Thomas, Arakelov sought permission from the court to cross-examine Thomas with the portion of his BWC footage following his arrest of Arakelov that showed several officers placing him in custody, taking him off the boat, and walking him out to the street. The court granted Arakelov’s request but excluded the audio portion of the footage. An exhibit containing only the video footage was later played during Arakelov’s cross-examination of Thomas. Additionally, the State later called SPD Officer John Randle to testify, whose BWC had also recorded Arakelov’s arrest, and Randle’s BWC’s video footage with the audio of that arrest was played for the jury.
Arakelov does not adequately support his assignment of error. He does not present argument or analysis to explain how playing Thomas’ video footage but excluding its audio portion meaningfully prevented him from engaging in cross- examination of Thomas or of any other witness. Nor does he present an offer of proof regarding the evidence that might have been elicited from Thomas’ or others’ testimony regarding the audio of the footage. Moreover, Arakelov does not show how the court’s ruling prevented him from presenting his theory of his defense to the jury. For instance, he does not present argument in support of the notion that the evidentiary content of the audio, ostensibly the officer statements, his statements, or his vocalizations of distress, was material to either his defense or, for that matter, to his cross-examination of Thomas or any other witness. Significantly, Arakelov does not address the fact that an audio recording of the arrest was played for the jury during Randle’s testimony on the subsequent trial day. As a result, Arakelov does not demonstrate the court’s evidentiary ruling
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deprived him of those constitutional rights on which he seeks to rely for appellate relief. 5 Arakelov’s defense theory was denial; he argued that he did not form the intent to commit burglary or arson and simply entered both businesses in search of shelter from cold conditions. He fails to explain how the exclusion of the audio from Thomas’ BWC footage furthered that defense theory, particularly in light of the admission of the audio from Randle’s BWC. Because he does not demonstrate that the excluded portion of such evidence was necessary to his defense theory or prevented him from engaging in meaningful cross-examination, he does not establish the actual prejudice required for our consideration of this issue pursuant to RAP 2.5(a). Accordingly, we decline to reach the merits of this assignment of error.
3. Claimed Due Process Violations Arakelov next asserts that he was deprived of his constitutional right to due process when the trial court sustained certain of the State’s objections to his closing argument and when he was convicted of the charged burglary offenses. We disagree.
a. Sustained Objections to Defense Closing Argument Arakelov avers, for the first time on appeal, that the trial court not only abused its discretion but also deprived him of the right to due process when it sustained certain of the State’s objections to his closing argument. His briefing on this issue does not warrant further consideration.
5 Arakelov instead somewhat vaguely references that the video and audio together would demonstrate his “true physical condition,” which his briefing does not define.
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Our Supreme Court has held that a trial court has broad discretionary powers over the scope of counsel’s closing argument, which includes restricting the argument of counsel to the facts in evidence and confining such argument to the law as set forth in the court’s instructions to the jury. State v. Frost, 160 Wn.2d 765, 771-72, 161 P.3d 361 (2007). However, “[w]here a trial court goes too far in limiting the scope of closing argument, a defendant’s constitutional rights may be implicated.” Id. at 772. For instance, “[i]mproper limitation of closing argument may . . . infringe upon a defendant’s Fourteenth Amendment due process rights.” Id. at 773 (citing In re Winship, 397 U.S. 358, 364 (1970)).
The trial record reflects that after sustaining the deputy prosecutor’s objections, the court instructed the jury to disregard facts not in evidence and to follow the court’s instructions. Arakelov’s appellate briefing attempts to support the existence of the asserted error by explaining his trial defense counsel’s justification for making the foregoing arguments in closing. In so attempting, however, he does not engage with the applicable test for a claimed due process violation, nor how the rulings that sustained the State’s objections constituted an abuse of discretion. 6 Therefore, we decline to reach this issue.
6 Arakelov also asserts the trial court deprived him of his Sixth Amendment right to counsel
as a result of the foregoing trial court rulings during closing argument. He is correct that such a right encompasses the delivery of a defense counsel’s closing argument. See Frost, 160 Wn.2d at 772 (citing Herring v. New York, 422 U.S. 853, 858 (1975)). However, he does not present adequate analysis to support that he was deprived of such a right as a result of the trial court’s rulings here.
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b. Vagueness Challenge to Burglary Convictions Arakelov next asserts, again for the first time on appeal, that his two convictions for burglary in the second degree must be vacated because the controlling statute, as applied to him for those convictions, is unconstitutionally vague in violation of his right to due process. This is so, he avers, because the statute applied to the facts of this case was overly subjective and the jury had “unfettered discretion, based on their own subjective understanding, to determine what the intended crimes were in both the glass studio and the boatyard.”
“A statute is presumed constitutional, and the burden falls on the challenging party to demonstrate unconstitutionality beyond a reasonable doubt.” State v. Calloway, 6 Wn.3d 257, 266, 585 P.3d 1270 (2026). Arakelov does not satisfy this burden; rather, his analysis on this issue conflates various constitutional standards. Further, he fails to engage with the fact that this argument was not presented in the trial court or the standard under RAP 2.5(a)(3) such that we could consider it for the first time on appeal. Therefore, we decline to consider the merits of this assertion.
II. Sufficiency of the Evidence Arakelov next asserts that the State failed to adduce sufficient evidence at trial to support the jury’s verdicts that convicted him of both counts of burglary in the second degree and reckless burning. We disagree.
We recently stated the relevant legal standard as follows:
We review a claim of insufficient evidence to determine “‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the
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essential elements of the crime beyond a reasonable doubt.’” State v. Dreewes, 192 Wn.2d 812, 821, 432 P.3d 795 (2019) (internal quotation marks omitted) (quoting State v. Johnson, 188 Wn.2d 742, 762, 399 P.3d 507 (2017)). “[W]e draw all reasonable inferences in favor of the State and against the defendant.” State v. Gregory, 25 Wn. App. 2d 12, 18, 521 P.3d 962 (2022). “‘A claim of insufficiency admits the truth of the State’s evidence and all inferences that can be drawn therefrom.’” Id. (quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). “We defer to the fact finder on issues of conflicting testimony, witness credibility, and persuasiveness of the evidence.” State v. Emery, 161 Wn. App. 172, 199, 253 P.3d 413 (2011), aff’d, 174 Wn.2d 741, 278 P.3d 653 (2012).
State v. Thompson, __ Wn. App. 2d __, 590 P.3d 732, 750 (2026). In determining sufficiency, circumstantial evidence is no less reliable than direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
A. Burglary in the Second Degree in Chihuly Studios Building Arakelov first asserts that insufficient evidence was adduced at trial to properly support the jury’s verdict that convicted him of burglary in the second degree regarding the Chihuly Studio premises. He does not dispute that he entered or remained unlawfully therein. Rather, he asserts that there was “a failure of proof that Mr. Arakelov intended to commit a crime inside the building.” We disagree.
Our Supreme Court’s decision in State v. Bergeron is instructive. 105 Wn.2d 1, 711 P.2d 1000 (1985). There, the court heard an appeal from a conviction of murder in the second degree and explained that “[t]he intent to commit a specific named crime inside the burglarized premises is not an ‘element’ of the crime of burglary . . . [, instead] [t]he intent required by our burglary statutes is simply the intent to commit any crime against a person or property inside the
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burglarized premises.” Id. at 4. Furthermore, the court quoted approvingly from our decision in that matter:
“Intent may be inferred from all the facts and circumstances surrounding the commission of an act or acts. State v. Lewis, 69 Wn.2d 120, 123, 417 P.2d 618 (1966), citing State v. Willis, 67 Wn.2d 681, 685, 409 P.2d 669 (1966). This rule is applicable in cases of attempted crimes as well as in cases where the crime has been consummated. State v. Lewis, supra at 123, citing State v. Leach, 36 Wn.2d 641, 646, 219 P.2d 972 (1950). Although intent may not be inferred from conduct that is patently equivocal, it may be inferred from conduct that plainly indicates such intent as a matter of logical probability. State v. Lewis, supra at 124.”
Id. at 19-20 (emphasis added) (quoting State v. Bergeron, 38 Wn. App. 416, 419, 685 P.2d 648 (1984)). The court also cited approvingly to a dissent from one of its earlier decisions:
“Knowledge of criminal intent usually resides exclusively in the mind of the defendant. [They] may unlawfully enter a building with the intent to commit a certain crime, and ultimately commit a different crime, or no crime at all. [They are] nonetheless guilty of burglary.
In either case, the State would be hard pressed to prove entry with intent to commit a crime if it were required to specify exactly which of several crimes available to the defendant [they] intended to commit. Such a requirement would seriously weaken the enforcement of burglary laws.”
Id. at 10-11 (emphasis added) (internal quotation marks omitted) (quoting State v. Johnson, 100 Wn.2d 607, 632-33, 674 P.2d 145 (1983) (Rosellini, J., dissenting), overruled by Bergeron, 105 Wn.2d 1). In Bergeron’s case, both this court and our Supreme Court held that the following evidence was sufficient to support the jury’s verdict as to his intent to commit a crime on the premises:
The defendant, at 3:15 a.m. on an April morning, was wearing leather gloves and a ski parka with hood. He broke out a basement window in an occupied residence, opened it and pushed it inward and off its track. Upon the prompt arrival of the police, the defendant fled and hid under a parked vehicle. After he was found by a skilled tracking
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dog and ordered out by a police officer, who identified himself as an officer, he again ran, again hid and had to again be pursued, captured and subdued. The defendant admitted he had intended to enter the home through the broken window.
Id. at 11.
Here, the “to convict” instruction for the Chihuly Studio burglary charge stated,
To convict the defendant of the crime of burglary in the second degree as charged in Count 1, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the period between March 21, 2023, and March 22, 2023, the defendant unlawfully entered or remained unlawfully in a building, located at 509 NE Northlake Way, Seattle;
(2) That the entering or remaining was with intent to commit a crime against a person or property therein; and (3) That this act occurred in the State of Washington.
(Emphasis added.) The jury was further instructed, “A person acts with intent or intentionally when acting with the objective or purpose to accomplish a result that constitutes a crime” and,
The evidence that has been presented to you may be either direct or circumstantial. The term “direct evidence” refers to evidence that is given by a witness who has directly perceived something at issue in this case. The term “circumstantial evidence”
refers to evidence from which, based on your common sense and experience, you may reasonably infer something that is at issue in this case.
The law does not distinguish between direct and circumstantial evidence in terms of their weight or value in finding the facts in this case. One is not necessarily more or less valuable than the other.
The following evidence was presented at trial in support of this charge: In the late evening or early morning, with no one else in the vicinity, Arakelov repeatedly punched a second-story window of the Chihuly Studio in order to gain access to the building, knew that he did not have lawful authority to be there, and
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entered the building despite not having such authority. He then barricaded several doors and left a trail of blood inside, including placing his bloodied hands on the drywall of the building’s interior, and climbed onto the roof where he damaged a rooftop exhaust fan that was connected to the building’s internal furnace venting system such that it no longer functioned.
This evidence was sufficient to support his Chihuly Studio burglary conviction. Admitting the truth of the State’s evidence and taking all reasonable inferences therefrom, Arakelov’s conduct plainly reflects an intention to commit a crime inside of the building, including though not specifically the crime of malicious mischief in light of not only the damage to the building’s drywall but also its furnace exhaust infrastructure. 7 Thus, his assertion fails.
B. Burglary in the Second Degree in Seattle Boat Company Premises Arakelov next challenges the sufficiency of the evidence underlying his conviction for the Seattle Boat Company burglary on the basis that the record did not support that he entered a “building.” This is so, Arakelov avers, because the boatyard was enclosed on three sides by fencing but open to water on one side. Arakelov misses the mark.
The “to convict” instruction for the Seattle Boat Company burglary charge read, in relevant part,
7 Our legislature set forth the crime of malicious mischief in the third degree as follows:
(1) A person is guilty of malicious mischief in the third degree if [they]:
(a) Knowingly and maliciously cause[] physical damage to the property of another, under circumstances not amounting to malicious mischief in the first or second degree.
RCW 9A.48.090. The legislature defined “physical damage” as including its “ordinary meaning” and “any diminution in the value of any property as the consequence of an act and the cost to repair any physical damage.” RCW 9A.48.100 (emphasis added).
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To convict the defendant of the crime of burglary in the second degree as charged in Count 2, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about March 22, 2023, the defendant unlawfully entered or remained unlawfully in a building, located at 659 NE Northlake Way, Seattle.
(Emphasis added.) Jury instruction no. 9 read, “‘Building,’ in addition to its ordinary meaning, includes any fenced area. Building also includes any other structure used for carrying on business therein.” Hence, the jury was instructed that a building could include any fenced area used for carrying on business therein.
Sufficient evidence supported the jury’s finding that the Seattle Boat Company premises constituted a building with a fenced area as charged and proved here. Taking all reasonable inferences in the State’s favor, the record reflects that the manner in which Arakelov entered the premises as part of the burglary charge was through the fenced side of the premises, not the side open to the water. For instance, during his direct examination, he testified as follows:
Q. Do you recall how you got into the boatyard?
A. I honestly can’t remember exactly how I got in there. . . . I, like, squeezed through something, or went around something.
I don’t remember exactly. I don’t really recall exactly how I got there.
(Emphasis added.) Then, the following exchange occurred on cross-examination:
Q. You didn’t have to, like, jump anything, break anything, scale anything to get onto that dock. You were able to walk right over onto it?
A. Honestly, I don’t remember if I was able to walk right over to it, or—I know I didn’t climb anything. But I don’t know if, like, there was something I walked around, or like kind of just like swung around, kind of. I just don’t—I don’t remember exactly.
I mean, it’s possible. But I didn’t climb anything. I know that.
I didn’t climb any fences.
....
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Q. Okay. So you agree that you got off the trail somewhere, walked through this parking lot past the business, through that vegetation, and that’s how you accessed that dock?
A. Yes.
Q. And would you agree with me that that’s a business dock?
That’s clearly not a park.
A. Um, yeah, I would.
....
Q. Do you believe there was a fence there?
A. I honestly, like, I can’t remember. Like, there was—I didn’t climb over anything to get there, you know. So I don’t really remember if there was a fence or not.
....
Q. Sir, is there a fence in this picture?
....
A. I can’t really see very well on this. But, yeah, that looks like a fence. I mean, it’s possible it could have been. I just don’t remember if there was or not.
Then, in closing argument, his trial counsel stated, with regard to his entry on the Seattle Boat Company premises,
However he got in there, he didn’t climb the fence, but he probably squeezed through a fence, or something. He got in there somehow.
The majority of that property was fenced.
(Emphasis added.)
The foregoing testimony and admission during closing argument reflect that Arakelov entered the Seattle Boat Company premises not through its open water boundary but, rather, through the portion that is fenced in. Consequently, whether the premises were open on one side to water was not a material aspect of the burglary charge in this matter because of the manner in which Arakelov entered through the fenced area of the premises.
On appeal, Arakelov makes much of the fact that one side of the property was an unfenced water boundary and contends that such a property cannot, as a matter of law, satisfy the meaning of building as provided in the burglary statute,
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jury instructions, and case law. However, we are to avoid absurd results when interpreting statutes. State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003); State v. Liden, 138 Wn. App. 110, 117, 156 P.3d 259 (2007). Arakelov’s argument, if taken to its logical conclusion, would hold that any otherwise fenced-in waterfront property cannot be subjected to a burglary. This would be an absurd result not intended by the legislature, especially in a state adjacent to an ocean, containing many bodies of inland water and waterways.
We acknowledge that our Supreme Court held in State v. Engel, that “a large private yard that was partially enclosed by a fence and partially bordered by sloping terrain” was not a “‘fenced area’” for the purpose of the burglary in the second degree statute. 166 Wn.2d 572, 574, 210 P.3d 1007 (2009). The court noted, though, that “[s]ecurity cameras did not prove how the thieves entered the yard” in that case. Id. Here, however, Arakelov himself provided that proof. In Engel, the court considered the fact of the fencing and terrain as a means of answering the question of whether the conduct alleged therein was “outside the category of offenses the legislature intended to punish as burglary.” Id. at 580. The court expressed concern that
would-be petty criminals who trespass might be liable for burglary even if the property line at their point of entry were unfenced and unmarked, even if they remained on the property without approaching any buildings or structures, and even if the property were such that they could enter and remain without being aware that it was fenced.
Id. This is a significant consideration because fair notice of exclusion is critical to the crime of burglary, which is why the manner of entry matters. None of the concerns expressed in Engel are present here, however. Rather, the record
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reflects that Arakelov’s point of entry into the Seattle Boat Company premises was fenced and he plainly knew that he was entering the property of a business. Commonsense analysis of the relevant statutes and case law clearly support our conclusion that the fact the boat company lot was adjacent to a body of water and unfenced at the water’s edge does not remove it from the purview of the burglary statutes.
Sufficient evidence supports the jury’s verdict for Arakelov’s burglary conviction regarding the Seattle Boat Company.
C. Reckless Burning in the Second Degree in Seattle Boat Company Premises
Arakelov next asserts that insufficient evidence was adduced at trial to properly support his conviction for reckless burning because the trial record did not contain any evidence to establish that he caused any fire, much less did so knowingly. We disagree.
The “to convict” instruction for the reckless burning offense read as follows:
To convict the defendant of the crime of reckless burning in the first degree, as charged in Count 4, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about March 22, 2023, the defendant caused a fire or an explosion;
(2) That the fire or explosion damaged boats, boat racks, and a building, located at 659 NE Northlake Way, Seattle;
(3) That the defendant knowingly caused the fire or explosion;
(4) That the defendant recklessly caused the damage; and (5) That this act occurred in the State of Washington.
(Emphasis added.)
Here, the following evidence was presented at trial in support of establishing that Arakelov knowingly caused a fire on the boat rack in question: it was a cold,
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wet night, no one else was present at the time that Arakelov entered the Seattle Boat Company premises, and the boats on the premises, including those on the racks, were all in storage and had been winterized with no external power running to them. No fire had been started within the upper tier of boat rack in question before Arakelov climbed into that area. After Arakelov climbed into that boat rack, a fire started. Once the fire started, Arakelov climbed down from the boat rack and hid himself in another boat, a butane torch was later found in that boat, the owner of the boat did not recognize that torch as his, and the torch was one that could ignite a fiberglass boat but would require holding the torch to the surface of the boat for close to a minute. The State’s fire investigator who analyzed the scene testified as an expert witness and opined that the fire was intentionally started.
The foregoing evidence, along with reasonable inferences therefrom, reflects that abundant circumstantial evidence was presented at trial to support the jury’s verdict that Arakelov knowingly caused a fire in the Seattle Boat Company premises. Although no witness observed him start a fire and he testified that he did not do so, such direct evidence is not required to convict him of the reckless burning charge, and the jury’s verdict establishes that they did not credit his testimony to that effect. Because a rational juror could conclude that Arakelov knowingly caused the fire, his challenge to the sufficiency of the evidence underlying that element fails.
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III. First Degree Trespassing Not Lesser-Included Offense of Burglary in Second Degree
Finally, Arakelov asserts that the trial court erred when it denied his request to instruct the jury that the offense of trespassing in the first degree was a lesser- included offense of burglary in the second degree. In so doing, he requests that we decline to follow recent unanimous Washington Court of Appeals decisional authority which has consistently held that statutory criminal trespassing offenses are not lesser included offenses of statutory burglary offenses. We decline Arakelov’s invitation.
In State v. Moreno we held, “[T]o the extent our previous cases support that first degree criminal trespass is a lesser included offense of first degree burglary, we disagree with them and decline to follow them.” 14 Wn. App. 2d 143, 156, 470 P.3d 507 (2020), aff’d, 198 Wn.2d 737, 499 P.3d 198 (2021). In so doing, we disavowed our prior decisional authority in State v. Soto, 45 Wn. App. 839 727 P.2d 999 (1986), where we held that criminal trespass in the first degree is a lesser included offense of burglary in the second degree because, according to our decision in Moreno,
the analysis in Soto was flawed. First degree criminal trespass requires a person to know that their entry or remaining in a building is unlawful. But, the first degree burglary statute requires no such knowledge. A person’s entry or remaining must be factually unlawful.
The required mental state for first degree burglary is the intent to commit a crime against a person or property therein. Compare RCW 9A.52.070(1), with RCW 9A.52.020(1). As a result, not all of the elements of first degree criminal trespass are necessary elements of first degree burglary. A person could commit all of the elements of first degree burglary, but not be guilty of first degree criminal trespass because they did not know that their entry or remaining was unlawful.
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Moreno, 14 Wn. App. 2d at 156. In disavowing Soto, we also expressly disavowed the holding therein that criminal trespass in the first degree is a lesser included offense of burglary in the second degree.
Our view in Moreno was adopted by Division Three of this court in State v.
Brown, 25 Wn. App. 2d 634, 642-43, 528 P.3d 370 (2023). There, in an appeal centered on a claim of IAC, this court cited to Moreno and its disavowal of Soto and held, “Because second degree trespass is not a lesser included offense of second degree burglary, trial counsel did not perform ineffectively for failing to ask for a lesser included offense jury instruction.” Brown, 25 Wn. App. 2d at 642-43.
Then, Division Two of this court in State v. Azevedo, 31 Wn. App. 2d 70, 83, 547 P.3d 287 (2024), considered another IAC issue wherein trial defense counsel did not request a trespass instruction as a lesser included offense of burglary in the second degree. Relying on statutory interpretation and Moreno, the court in Division Two concluded,
Criminal trespass is not a lesser included offense of burglary in the second degree. Knowledge of the unlawfulness of entering or remaining, as is required for criminal trespass, is not a statutory element of second degree burglary, which requires a mens rea element by requiring proof of intent to commit a crime. RCW 9A.52.030, .070. No additional mens rea requirement impliedly exists: the intent required in burglary is simply the intent to commit any crime against a person or property inside the burglarized premise. State v. Moreno, 198 Wn.2d 737, 745, 499 P.3d 198 (2021). In fact, for any burglary charge, if an accused enters or remains unlawfully, a permissible inference arises that the accused acted with the intent to commit a crime unless other evidence is presented. RCW 9A.52.040;[8] see also Moreno, 198 Wn.2d at 746.
This inference is permitted without requiring that the defendant know their entering or remaining was unlawful. Moreno, 198 Wn.2d at 746.
8 The jury in this matter was not issued an instruction regarding RCW 9A.52.040.
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Azevedo, 31 Wn. App. 2d at 83. We adhere to the foregoing precedent and reject Arakelov’s assertion. 9 Accordingly, Arakelov fails to establish an entitlement to appellate relief, and we affirm.
WE CONCUR:
9 Arakelov nevertheless relies on our decision in State v. Lacson, another appeal premised
on a claim of IAC, but one in which we held that trial defense counsel’s performance was not deficient when his counsel offered an unopposed jury instruction to the court that criminal trespass was a lesser included offense of the crime of residential burglary and in which the jury convicted him of the as-designated-therein lesser included offense, rather than the more serious burglary charge. No. 87211-7-I, slip op. at 5-6 (Wash. Ct. App. Mar. 10, 2025) (unpublished), https://www.courts.wa.gov/opinions/pdf/872117.pdf. Significantly, this court noted, “Lacson does not argue whether he was entitled to the instruction or that the trial court erred by giving the jury instruction.” Id. at 6. Therefore, we plainly did not consider the merits of the issue on which Arakelov requests a decision in his appeal. His reliance on Lacson is unavailing.
He also attempts to rely on Justice Madsen’s concurring opinion in State v. Moreno, 198 Wn.2d 737, 499 P.3d 198 (2021) (Madsen, J., concurring), that stated, “I write separately to state that in my view, criminal trespass is a lesser included offense of burglary,” wherein she set forth analysis in support of her view, and on which Arakelov relies in his briefing on this issue. Id. at 758-61. Respectfully, however, given that Justice Madsen’s view was not joined by other members of the court and the majority of the court therein did not elect to disturb this court’s more recent precedent discussed herein, Arakelov’s reliance on her concurrence is similarly unavailing.