FILED
MAY 21,2013
In the Office of the Clerk of Court
WA State Court of Appeals, Division [II
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 29785-3-111 ) Respondent, ) ) v. ) ) GARY DWAYNE McCABE, ) UNPUBLISHED OPINION ) Appellant. )
BROWN, J. - Gary Dwayne McCabe appeals his residential burglary and
methamphetamine possession convictions. He contends the trial court erred by
declining his requested lesser included offense instruction and insufficient evidence
supports the crime date stated in his to-convict instruction. We affirm.
FACTS
On August 12, 2010, Dennis and Bette Miller left their house to get lunch. While
the Millers were gone, neighbor Eric Rogers saw a male walk around the side of the
house and load wooden boxes into a red Dodge Neon two or three times over the span
of about one and a half to two minutes. When the Millers returned, they found someone
had broken a rear basement window, entered the house, and removed items including
five wooden boxes holding a coin collection worth $27,340. On August 20,2010, law
enforcement stopped and arrested Mr. McCabe in a red Dodge Neon, finding a wooden No. 29785-3-111 State v. McCabe
box and gold coins on the front passenger seat and a certificate of authenticity for two
silver coins in his breast pocket. Law enforcement then impounded the vehicle and
executed a search warrant for it five days later, finding methamphetamine and a stolen
laptop computer in the back seat area.
The State charged Mr. McCabe with residential burglary, methamphetamine
possession, and third degree stolen property possession. The trial court declined his
request to instruct the jury on first degree criminal trespass as a lesser included offense
of residential burglary. Without objection, the trial court instructed the jury that to
convict him of methamphetamine possession, it must find he did so "on or about August
24,2010." Clerk's Papers (CP) at 124. The jury found Mr. McCabe guilty of residential
burglary and methamphetamine possession but acquitted him of third degree stolen
property possession. He appealed.
ANALYSIS
A. Lesser Included Offense Instruction
The issue is whether the trial court erred in declining Mr. McCabe's request to
instruct the jury on first degree criminal trespass as a lesser included offense of
residential burglary. He contends the ruling is erroneous because the court adopted an
incorrect view of the facts. We disagree.
Where, as here, the trial court declines to give a requested jury instruction based
on its view of the facts, we review the decision for abuse of discretion. State v. Lucky,
128 Wn.2d 727,731,912 P.2d 483 (1996), overruled on other grounds by State v.
Berlin, 133 Wn.2d 541,544,947 P.2d 700 (1997). A trial court abuses its discretion if
No. 29785-3-111 State v. McCabe
its decision is "manifestly unreasonable," based on "untenable grounds," or made for
"untenable reasons."1 State ex rei. Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775
(1971).
A jury cannot convict a defendant of an uncharged offense. CONST. art. I, § 22
(amend. 10); State v. Ackles, 8 Wash. 462,464,36 P. 597 (1894). But a jury may
convict a defendant of a lesser offense necessarily included in a charged offense. RCW
10.61.006; Beck v. Alabama, 447 U.S. 625,634,100 S. Ct. 2382, 65 LEd. 2d 392
(1980). If an offense is lesser included, the trial court must instruct the jury on it when
either party requests. State v. Workman, 90 Wn.2d 443,447,584 P.2d 382 (1978);
State v. Mak, 105 Wn.2d 692,745,747,718 P.2d 407 (1986), overruled on other
grounds by State v. Hill, 123 Wn.2d 641,870 P.2d 313 (1994). An offense is lesser
included if it satisfies a legal prong and a factual prong. Workman, 90 Wn.2d at 447-48.
Under the legal prong, "each of the elements of the lesser offense must be a necessary
element of the offense charged." Id. Under the factual prong, "the evidence in the case
must support an inference that the lesser crime was committed." Id. at 448.
The parties dispute solely the factual prong. A lesser offense satisfies the factual
1 A decision is based on untenable grounds or made for untenable reasons if it rests on facts unsupported in the record or was reached by applying the wrong legal standard. A decision is manifestly unreasonable if the court, despite applying the correct legal standard to the supported facts, adopts a view that no reasonable person would take, and arrives at a decision outside the range of acceptable choices. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003) (citations omitted) (internal quotation marks omitted).
prong "[i]f the evidence would permit a jury to rationally find a defendant guilty of the
lesser offense and acquit him of the greater." State v. Warden, 133 Wn.2d 559, 563,
947 P.2d 708 (1997) (citing Beck, 447 U.S. at 635). But the evidence must do more
than merely cast doubt on the State's theory regarding the charged offense; instead, the
evidence must affirmatively establish the defendant's theory regarding the lesser
offense. State v. Fowler, 114 Wn.2d 59,67,785 P.2d 808 (1990), overruled on other
grounds by State v. Blair, 117 Wn.2d 479,816 P.2d 718 (1991). In other words, "the
evidence must raise an inference that only the lesser ... offense was committed to the
exclusion of the charged offense." State v. Fernandez-Medina, 141 Wn.2d 448,455,6
P.3d 1150 (2000). This analysis requires "view[ing] the supporting evidence in the light
most favorable to the party that requested the instruction." Id. at 455-56.
A person commits residential burglary if he or she "enters or remains unlawfully
in a dwelling" and does so "with intent to commit a crime against a person or property
therein." RCW 9A.52.025(1). A dwelling is a "building" a person uses or ordinarily uses
for lodging. RCW 9A.04.110(7). In this context, the definition of "building" includes a
fenced area. RCW 9A.04.11 0(5). A person commits first degree criminal trespass if he
or she "knowingly enters or remains unlawfully in a building." RCW 9A.52.070(1). In
this context, the definition of "building" excludes a fenced area. State v. Brown, 50 Wn.
App. 873, 878, 751 P.2d 331
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FILED
MAY 21,2013
In the Office of the Clerk of Court
WA State Court of Appeals, Division [II
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 29785-3-111 ) Respondent, ) ) v. ) ) GARY DWAYNE McCABE, ) UNPUBLISHED OPINION ) Appellant. )
BROWN, J. - Gary Dwayne McCabe appeals his residential burglary and
methamphetamine possession convictions. He contends the trial court erred by
declining his requested lesser included offense instruction and insufficient evidence
supports the crime date stated in his to-convict instruction. We affirm.
FACTS
On August 12, 2010, Dennis and Bette Miller left their house to get lunch. While
the Millers were gone, neighbor Eric Rogers saw a male walk around the side of the
house and load wooden boxes into a red Dodge Neon two or three times over the span
of about one and a half to two minutes. When the Millers returned, they found someone
had broken a rear basement window, entered the house, and removed items including
five wooden boxes holding a coin collection worth $27,340. On August 20,2010, law
enforcement stopped and arrested Mr. McCabe in a red Dodge Neon, finding a wooden No. 29785-3-111 State v. McCabe
box and gold coins on the front passenger seat and a certificate of authenticity for two
silver coins in his breast pocket. Law enforcement then impounded the vehicle and
executed a search warrant for it five days later, finding methamphetamine and a stolen
laptop computer in the back seat area.
The State charged Mr. McCabe with residential burglary, methamphetamine
possession, and third degree stolen property possession. The trial court declined his
request to instruct the jury on first degree criminal trespass as a lesser included offense
of residential burglary. Without objection, the trial court instructed the jury that to
convict him of methamphetamine possession, it must find he did so "on or about August
24,2010." Clerk's Papers (CP) at 124. The jury found Mr. McCabe guilty of residential
burglary and methamphetamine possession but acquitted him of third degree stolen
property possession. He appealed.
ANALYSIS
A. Lesser Included Offense Instruction
The issue is whether the trial court erred in declining Mr. McCabe's request to
instruct the jury on first degree criminal trespass as a lesser included offense of
residential burglary. He contends the ruling is erroneous because the court adopted an
incorrect view of the facts. We disagree.
Where, as here, the trial court declines to give a requested jury instruction based
on its view of the facts, we review the decision for abuse of discretion. State v. Lucky,
128 Wn.2d 727,731,912 P.2d 483 (1996), overruled on other grounds by State v.
Berlin, 133 Wn.2d 541,544,947 P.2d 700 (1997). A trial court abuses its discretion if
No. 29785-3-111 State v. McCabe
its decision is "manifestly unreasonable," based on "untenable grounds," or made for
"untenable reasons."1 State ex rei. Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775
(1971).
A jury cannot convict a defendant of an uncharged offense. CONST. art. I, § 22
(amend. 10); State v. Ackles, 8 Wash. 462,464,36 P. 597 (1894). But a jury may
convict a defendant of a lesser offense necessarily included in a charged offense. RCW
10.61.006; Beck v. Alabama, 447 U.S. 625,634,100 S. Ct. 2382, 65 LEd. 2d 392
(1980). If an offense is lesser included, the trial court must instruct the jury on it when
either party requests. State v. Workman, 90 Wn.2d 443,447,584 P.2d 382 (1978);
State v. Mak, 105 Wn.2d 692,745,747,718 P.2d 407 (1986), overruled on other
grounds by State v. Hill, 123 Wn.2d 641,870 P.2d 313 (1994). An offense is lesser
included if it satisfies a legal prong and a factual prong. Workman, 90 Wn.2d at 447-48.
Under the legal prong, "each of the elements of the lesser offense must be a necessary
element of the offense charged." Id. Under the factual prong, "the evidence in the case
must support an inference that the lesser crime was committed." Id. at 448.
The parties dispute solely the factual prong. A lesser offense satisfies the factual
1 A decision is based on untenable grounds or made for untenable reasons if it rests on facts unsupported in the record or was reached by applying the wrong legal standard. A decision is manifestly unreasonable if the court, despite applying the correct legal standard to the supported facts, adopts a view that no reasonable person would take, and arrives at a decision outside the range of acceptable choices. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003) (citations omitted) (internal quotation marks omitted).
prong "[i]f the evidence would permit a jury to rationally find a defendant guilty of the
lesser offense and acquit him of the greater." State v. Warden, 133 Wn.2d 559, 563,
947 P.2d 708 (1997) (citing Beck, 447 U.S. at 635). But the evidence must do more
than merely cast doubt on the State's theory regarding the charged offense; instead, the
evidence must affirmatively establish the defendant's theory regarding the lesser
offense. State v. Fowler, 114 Wn.2d 59,67,785 P.2d 808 (1990), overruled on other
grounds by State v. Blair, 117 Wn.2d 479,816 P.2d 718 (1991). In other words, "the
evidence must raise an inference that only the lesser ... offense was committed to the
exclusion of the charged offense." State v. Fernandez-Medina, 141 Wn.2d 448,455,6
P.3d 1150 (2000). This analysis requires "view[ing] the supporting evidence in the light
most favorable to the party that requested the instruction." Id. at 455-56.
A person commits residential burglary if he or she "enters or remains unlawfully
in a dwelling" and does so "with intent to commit a crime against a person or property
therein." RCW 9A.52.025(1). A dwelling is a "building" a person uses or ordinarily uses
for lodging. RCW 9A.04.110(7). In this context, the definition of "building" includes a
fenced area. RCW 9A.04.11 0(5). A person commits first degree criminal trespass if he
or she "knowingly enters or remains unlawfully in a building." RCW 9A.52.070(1). In
this context, the definition of "building" excludes a fenced area. State v. Brown, 50 Wn.
App. 873, 878, 751 P.2d 331 (1988), abrogated on other grounds by In re Pers.
Restraint of Heidari, 174 Wn.2d 288,274 P.3d 366 (2012).
Mr. McCabe argues the evidence shows he committed solely first degree criminal
trespass to the exclusion of residential burglary because he merely remained in the
fenced area and did not enter the house. But a person cannot commit first degree
criminal trespass by merely remaining in a fenced area. See id. As the notes and
comments to Mr. McCabe's own proposed instructions explain, the definition of
"building" for first degree criminal trespass excludes a fenced area. 11A WASHINGTON
PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 60.15 note on use & cmt.
at 20,60.16 note on use & cmt. at 21-22 (3d ed. 2008) (citing Brown, 50 Wn. App. 873).
Therefore, viewing the evidence in the light most favorable to Mr. McCabe, a jury could
not rationally find him guilty of first degree criminal trespass and acquit him of residential
burglary. It follows that the trial court did not abuse its discretion in deciding first degree
criminal trespass failed the factual prong here. In sum, we conclude the court did not
err in declining Mr. McCabe's requested lesser included offense instruction.
B. Evidence Sufficiency
The issue is whether sufficient evidence supports finding Mr. McCabe possessed
methamphetamine "on or about August 24,2010," the date the trial court included in the
to-convict instruction without objection. CP at 124. Mr. McCabe contends no evidence
supports this crime date.
Evidence is sufficient to support a guilty finding if, '''after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.'" State v. Green, 94 Wn.2d
216,221,616 P.2d 628 (1980) (emphasis omitted) (quoting Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781,61 L. Ed. 2d 560 (1979)). A challenge to evidence
sufficiency "admits the truth of the State's evidence and all inferences that reasonably
can be drawn therefrom." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
The Uniform Controlled Substances Act provides, "It is unlawful for any person to
possess a controlled substa'nce ...." RCW 69.50.4013(1). While the date is usually
not an essential element of a crime, State v. DeBolt, 61 Wn. App. 58, 62, 808 P.2d 794
(1991), the State must prove otherwise unnecessary elements where, as here, the trial
court includes them in the to-convict instruction without objection, State v. Hickman, 135
Wn.2d 97, 102,954 P.2d 900 (1998); see also State v. Jensen, 125 Wn. App. 319, 325
26,104 P.3d 717 (2005).
The State had to prove Mr. McCabe possessed methamphetamine on or about
August 24, 2010. Mr. McCabe does not dispute whether he possessed
methamphetamine on August 20,2010. Viewing the evidence in the light most
favorable to the State, a rational jury could find beyond a reasonable doubt that this
date was on or about August 24, 2010. See State v. Hayes, 81 Wn. App. 425, 432-33,
914 P.2d 788 (1996) (concluding the "on or about" language allows the State to offer
evidence the defendant committed the crime anytime within the statute of limitations
period where, as here, the date is not an essential element of the crime and the
defendant raises no alibi at the trial court)?
2 Mr. McCabe argues, for the first time on appeal, his incarceration on August 24, 2010 is an alibi and precludes the State from offering evidence he possessed methamphetamine on August 20,2010. We reject his argument because he raised no alibi at the trial court and the State consistently maintained he possessed methamphetamine on August 20,2010. See RAP 2.5(a).
Mr. McCabe relies on State v. Mills, 80 Wn. App. 231, 907 P.2d 316 (1995) to
urge a different result. In Mills, law enforcement arrested the defendant for
methamphetamine possession, uncovered a motel room key, executed a search
warrant for the motel room, and there discovered more methamphetamine with a
handgun lying beside it. 'd. at 233. The trial court convicted the defendant of
methamphetamine possession and found he committed the crime while armed with a
firearm. 'd. Division Two of this court reversed the 'firearm enhancement, concluding
the defendant was not armed because the handgun was several miles away at the time
of arrest. 'd. at 237. The court rejected the State's request to uphold the firearm
enhancement under the "on or about" language, partly because no evidence showed
the defendant, the methamphetamine, and the handgun were ever present in the motel
room at the same time. 'd. at 234.
Our case is unlike Mills. Here, Mr. McCabe was driving the vehicle immediately
before law enforcement stopped and arrested him on August 20, 2010. Because law
enforcement impounded the vehicle, executed a search warrant for it and discovered
methamphetamine inside it five days later, a rational jury could reasonably infer the
vehicle contained the methamphetamine at the time of arrest. Thus, the evidence
shows Mr. McCabe and the methamphetamine were both present in the vehicle at the
time of arrest. As noted, the time of arrest was on or about August 24, 2010. In sum,
sufficient evidence supports the crime date stated in the td-convict instruction.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Brown, J.
WE CONCUR:
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