Filed Washington State Court of Appeals Division Two
December 24, 2024
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 58307-1-II
Respondent,
v.
EVELYN ANN SCHANCE, UNPUBLISHED OPINION
Appellant.
VELJACIC, A.C.J. — Evelyn A. Schance appeals her conviction for possession of burglary
tools, arguing that the State did not prove that tools found in a stolen vehicle she was in possession
of were for burglary. She further alleges there is a scrivener’s error in the judgment and sentence
and that two of her legal financial obligations (LFOs)—the crime victim penalty assessment
(CVPA) and deoxyribonucleic acid (DNA) collection fee—should be stricken. We affirm
Schance’s conviction but remand for the trial court to strike the CVPA and DNA fee and correct
the scrivener’s error.
FACTS
Woodland Police Officer Raymond Hanning noticed a vehicle parked in the driveway of a
closed business. The vehicle was unoccupied and had a temporary Oregon license in the back
window. There was a note under a windshield wiper stating that the driver ran out of gas and
would be right back. 58307-1-II
Hanning noticed the vehicle identification number (VIN) listed on the temporary license
did not match the vehicle’s VIN. He searched the vehicle’s VIN and learned the vehicle had been
reported stolen in Oregon. Hanning called for backup.
Schance returned to the vehicle where officers arrested her. In a search incident to arrest,
officers located a wallet with the identification of another individual. Officers contacted the
individual and learned that her purse and wallet had been stolen in Oregon. Officers also located
inside the vehicle bolt cutters, small pliers/wire cutters, ceramic spark plugs (one with broken
ceramic), a long wire with bent hooked ends, and a machete.
The State charged Schance with possession of a stolen vehicle, possession of stolen
property in the second degree, and possession of burglary tools.
During trial, Hanning testified that while on patrol his attention was attracted to the vehicle
because it was parked in a driveway of a closed business. The driveway was for trucks and it was
odd for a passenger vehicle to be in the driveway, especially because the business was not open.
One of the responding officers, Brent Murray, testified that he did an area check to the
nearest convenience store/gas station. He observed Schance at a nearby store parking lot just past
the convenience store/gas station, carrying a backpack and a small gas can. He testified that he
thought her behavior was suspicious and that it was odd that she walked past the convenience
store/gas station. Murray next testified about the tools located inside the stolen vehicle. He
testified that the spark plugs and broken ceramic can be used to break windows. He further testified
that bolt cutters can be used to cut locks and chains. Wire cutters can be used to cut wires or
fencing. Pliers can be used to gain entry. And the long rod can be used with a machete, as a tool
to open locked door latches on a house or a car.
2 58307-1-II
Christopher Sciacca, another responding officer, testified that the tools located in the stolen
vehicle “could generally be used as a kit to access fences, vehicles.” Rep. of Proc. (RP) at 201.
He further testified that the tools were “kind of a key to the city . . . you could basically access . .
. anything.” RP at 201.
After the State rested, the defense moved for dismissal of all three charges, arguing the
State’s evidence failed to prove them beyond a reasonable doubt. Regarding the possession of
burglary tools charge, counsel argued the tools found in the vehicle were legally possessed and
there were no reports of any stolen or burgled cars in the area. The trial court denied the motion,
noting that even though there was no “string of break ins or car prowls in the vicinity . . . we can’t
ignore . . . that the vehicle itself was listed as a stolen vehicle.” RP at 219.
The trial court instructed the jury that a person commits the crime of making or having
burglary tools when he or she has tools “used for the commission of burglary under circumstances
evincing an intent to use or employ, or allow the same to be used or employed in the commission
of a burglary, or knowing that the same is intended to be so used.” Clerk’s Papers (CP) at 41.
A jury found Schance guilty as charged. However, on the judgment and sentence, the trial
court listed one of the convictions as identity theft in the second degree instead of possession of
stolen property in the second degree. The court also imposed a $500 CVPA and $100 DNA
collection fee. After sentencing, the court entered an order finding Schance indigent.
Schance appeals.
3 58307-1-II
ANALYSIS
I. SUFFICIENCY OF EVIDENCE
Schance contends the State failed to prove beyond a reasonable doubt that she possessed
burglary tools under circumstances evincing an intent to commit a burglary. We disagree.
In a challenge to the sufficiency of the evidence, our review is “highly deferential to the
jury’s decision.” State v. Davis, 182 Wn.2d 222, 227, 340 P.3d 820 (2014). We ask whether,
taking the State’s evidence as true and drawing all reasonable inferences in the State’s favor, any
rational trier of fact could have found guilt beyond a reasonable doubt. Id. “Circumstantial
evidence and direct evidence are equally reliable.” State v. Goodman, 150 Wn.2d 774, 781, 83
P.3d 410 (2004).
Under RCW 9A.52.060(1), a person is guilty of making or having burglary tools if he or
she (1) possessed a tool adapted, designed, or commonly used for the commission of burglary and
(2) “under circumstances evincing an intent to use or employ” the tools “in the commission of a
burglary, or knowing that the same is intended to be so used, shall be guilty of making or having
burglar tools.” Similarly, the trial court instructed the jury that a person commits the crime of
making or having burglary tools when he or she has tools “used for the commission of burglary
under circumstances evincing an intent to use or employ, or allow the same to be used or employed
in the commission of a burglary, or knowing that the same is intended to be so used.” CP at 41.
A burglary occurs when a person enters or remains unlawfully “in a building” with intent to
commit a crime against a person or property inside. CP at 41; see also RCW 9A.52.020.
Relying on State v. Miller, 90 Wn. App. 720, 954 P.2d 925 (1998), Schance argues the
State did not prove she had an intent to commit a burglary. In Miller, James Miller entered an
open self-service car wash, used bolt cutters and other tools to remove the locks from coin boxes,
4 58307-1-II
and took money. Id. at 723. The State charged Miller with burglary, having burglary tools, and
theft. Id. A jury convicted him of all three charges. Id. On appeal, Division III of this court
reversed Miller’s burglary and possession of burglary tools convictions. Id. at 730. The court
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Filed Washington State Court of Appeals Division Two
December 24, 2024
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 58307-1-II
Respondent,
v.
EVELYN ANN SCHANCE, UNPUBLISHED OPINION
Appellant.
VELJACIC, A.C.J. — Evelyn A. Schance appeals her conviction for possession of burglary
tools, arguing that the State did not prove that tools found in a stolen vehicle she was in possession
of were for burglary. She further alleges there is a scrivener’s error in the judgment and sentence
and that two of her legal financial obligations (LFOs)—the crime victim penalty assessment
(CVPA) and deoxyribonucleic acid (DNA) collection fee—should be stricken. We affirm
Schance’s conviction but remand for the trial court to strike the CVPA and DNA fee and correct
the scrivener’s error.
FACTS
Woodland Police Officer Raymond Hanning noticed a vehicle parked in the driveway of a
closed business. The vehicle was unoccupied and had a temporary Oregon license in the back
window. There was a note under a windshield wiper stating that the driver ran out of gas and
would be right back. 58307-1-II
Hanning noticed the vehicle identification number (VIN) listed on the temporary license
did not match the vehicle’s VIN. He searched the vehicle’s VIN and learned the vehicle had been
reported stolen in Oregon. Hanning called for backup.
Schance returned to the vehicle where officers arrested her. In a search incident to arrest,
officers located a wallet with the identification of another individual. Officers contacted the
individual and learned that her purse and wallet had been stolen in Oregon. Officers also located
inside the vehicle bolt cutters, small pliers/wire cutters, ceramic spark plugs (one with broken
ceramic), a long wire with bent hooked ends, and a machete.
The State charged Schance with possession of a stolen vehicle, possession of stolen
property in the second degree, and possession of burglary tools.
During trial, Hanning testified that while on patrol his attention was attracted to the vehicle
because it was parked in a driveway of a closed business. The driveway was for trucks and it was
odd for a passenger vehicle to be in the driveway, especially because the business was not open.
One of the responding officers, Brent Murray, testified that he did an area check to the
nearest convenience store/gas station. He observed Schance at a nearby store parking lot just past
the convenience store/gas station, carrying a backpack and a small gas can. He testified that he
thought her behavior was suspicious and that it was odd that she walked past the convenience
store/gas station. Murray next testified about the tools located inside the stolen vehicle. He
testified that the spark plugs and broken ceramic can be used to break windows. He further testified
that bolt cutters can be used to cut locks and chains. Wire cutters can be used to cut wires or
fencing. Pliers can be used to gain entry. And the long rod can be used with a machete, as a tool
to open locked door latches on a house or a car.
2 58307-1-II
Christopher Sciacca, another responding officer, testified that the tools located in the stolen
vehicle “could generally be used as a kit to access fences, vehicles.” Rep. of Proc. (RP) at 201.
He further testified that the tools were “kind of a key to the city . . . you could basically access . .
. anything.” RP at 201.
After the State rested, the defense moved for dismissal of all three charges, arguing the
State’s evidence failed to prove them beyond a reasonable doubt. Regarding the possession of
burglary tools charge, counsel argued the tools found in the vehicle were legally possessed and
there were no reports of any stolen or burgled cars in the area. The trial court denied the motion,
noting that even though there was no “string of break ins or car prowls in the vicinity . . . we can’t
ignore . . . that the vehicle itself was listed as a stolen vehicle.” RP at 219.
The trial court instructed the jury that a person commits the crime of making or having
burglary tools when he or she has tools “used for the commission of burglary under circumstances
evincing an intent to use or employ, or allow the same to be used or employed in the commission
of a burglary, or knowing that the same is intended to be so used.” Clerk’s Papers (CP) at 41.
A jury found Schance guilty as charged. However, on the judgment and sentence, the trial
court listed one of the convictions as identity theft in the second degree instead of possession of
stolen property in the second degree. The court also imposed a $500 CVPA and $100 DNA
collection fee. After sentencing, the court entered an order finding Schance indigent.
Schance appeals.
3 58307-1-II
ANALYSIS
I. SUFFICIENCY OF EVIDENCE
Schance contends the State failed to prove beyond a reasonable doubt that she possessed
burglary tools under circumstances evincing an intent to commit a burglary. We disagree.
In a challenge to the sufficiency of the evidence, our review is “highly deferential to the
jury’s decision.” State v. Davis, 182 Wn.2d 222, 227, 340 P.3d 820 (2014). We ask whether,
taking the State’s evidence as true and drawing all reasonable inferences in the State’s favor, any
rational trier of fact could have found guilt beyond a reasonable doubt. Id. “Circumstantial
evidence and direct evidence are equally reliable.” State v. Goodman, 150 Wn.2d 774, 781, 83
P.3d 410 (2004).
Under RCW 9A.52.060(1), a person is guilty of making or having burglary tools if he or
she (1) possessed a tool adapted, designed, or commonly used for the commission of burglary and
(2) “under circumstances evincing an intent to use or employ” the tools “in the commission of a
burglary, or knowing that the same is intended to be so used, shall be guilty of making or having
burglar tools.” Similarly, the trial court instructed the jury that a person commits the crime of
making or having burglary tools when he or she has tools “used for the commission of burglary
under circumstances evincing an intent to use or employ, or allow the same to be used or employed
in the commission of a burglary, or knowing that the same is intended to be so used.” CP at 41.
A burglary occurs when a person enters or remains unlawfully “in a building” with intent to
commit a crime against a person or property inside. CP at 41; see also RCW 9A.52.020.
Relying on State v. Miller, 90 Wn. App. 720, 954 P.2d 925 (1998), Schance argues the
State did not prove she had an intent to commit a burglary. In Miller, James Miller entered an
open self-service car wash, used bolt cutters and other tools to remove the locks from coin boxes,
4 58307-1-II
and took money. Id. at 723. The State charged Miller with burglary, having burglary tools, and
theft. Id. A jury convicted him of all three charges. Id. On appeal, Division III of this court
reversed Miller’s burglary and possession of burglary tools convictions. Id. at 730. The court
found there were no circumstances that constituted burglary because the self-service car wash was
open to the public and not contained within a building. Id. at 725.
Here, unlike in Miller, Schance parked a stolen vehicle, containing stolen property, in front
of a closed business. She was observed walking around another business’s parking lot and away
from the nearest gas station. Schance then returned to the stolen vehicle outside the closed
business. Murray testified that the tools located inside the stolen vehicle could be used to break
windows. Sciacca testified that the tools “could generally be used as a kit to access fences.” RP
at 201. He further testified that the tools were “kind of a key to the city . . . you could basically
access . . . anything.” RP at 201.
Viewing this evidence in the light most favorable to the State, as we must, the reasonable
inference is that Schance, as to prong two of RCW 9A.52.060(1) set forth above, possessed tools
adapted or commonly used for burglary and there were circumstances, such as possessing a stolen
vehicle, parking the vehicle at a closed business, and suspiciously walking around the parking lot
of another business, evincing an intent to use or employ the tools for a burglary. Accordingly,
sufficient evidence exists to support the jury’s finding that Schance was guilty of possession of
burglary tools.
II. SCRIVENER’S ERROR ON JUDGMENT AND SENTENCE
Schance argues that even if her conviction is affirmed, we should remand the case with
instructions to change the identity theft conviction on her judgment and sentence to possession of
stolen property. The State concedes. We accept the State’s concession.
5 58307-1-II
“A scrivener’s error is one that, when amended, would correctly convey the intention of
the trial court as expressed in the record at trial.” State v. Starr, 16 Wn. App. 2d 106, 110 n.3, 479
P.3d 1209 (2021) (emphasis omitted). A jury found Schance guilty of possession of stolen
property in the second degree. However, on the judgment and sentence, the trial court listed the
conviction as identity theft in the second degree. This appears to be a scrivener’s error.
Accordingly, the judgment and conviction must be remanded for correction.
III. LFOs
Schance lastly argues that we should remand for the trial court to waive the CVPA and
DNA collection fee based on recent legislative changes and because she is indigent. The State
concedes that we should remand for the trial court to waive these fees. We agree with Schance
and the State.
Recently, the legislature amended the LFO statutes allowing trial courts to waive certain
fees and costs, particularly if a defendant is indigent at the time of sentencing. Effective July 1,
2023, RCW 7.68.035(4) prohibits courts from imposing the crime victim penalty assessment on
indigent defendants. The legislature also amended RCW 43.43.7541(2) to require waiver of a
DNA collection fee imposed before July 1, 2023 upon the defendant’s motion. LAWS OF 2023, ch.
449, § 4. We accept the State’s concession that Schance was indigent. Accordingly, we remand
for the trial court to strike the CVPA and DNA collection fee.
CONCLUSION
We affirm Schance’s possession of burglary tools conviction but remand for the trial court
to correct the scrivener’s error in the judgment and sentence and to strike the CVPA and DNA
collection fee.
6 58307-1-II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Veljacic, A.C.J.
We concur:
Lee, J.
Glasgow, J.