Filed Washington State Court of Appeals Division Two
August 7, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 50154-6-II
Respondent,
v. UNPUBLISHED OPINION
JOEY LEE McMILLAN,
Appellant.
MAXA, C.J. – Joey McMillan appeals his convictions of second degree burglary and third
degree malicious mischief. We hold that the trial court did not err in declining to give two jury
instructions that McMillan proposed: (1) an instruction that modified the statutory definition of
“enters or remains unlawfully” to add a knowledge requirement, and (2) a lesser included offense
instruction for first degree criminal trespass. Accordingly, we affirm McMillan’s convictions.
FACTS
On Saturday, June 25, 2016, Noel Vas went into the Washington State Auditor’s Office
in Tumwater, where he worked. He noticed some ceiling tiles and wires dangling near the wall
and saw McMillan in a co-worker’s cubicle on his hands and knees. Vas called 911 and reported
that there was an intruder in the building.
Tumwater Police Officer Tye Hollinger located McMillan inside the building. Hollinger
arrested McMillan and in a search incident to arrest discovered what appeared to be a used
hypodermic syringe. Hollinger spoke with McMillan, who explained that earlier that day he had
purchased heroin and methamphetamine and used both at the same time. He admitted entering No. 50154-6-II
the building through a back door that had not been properly secured, and he admitted causing
damage to the facility. McMillan explained that he went into the building because people were
hiding from him.
Hollinger believed that McMillan was under the influence of methamphetamine. But
Hollinger noted that McMillan was able to speak coherently and cooperatively, that he had no
difficulties speaking with McMillan, and that McMillan appeared to have no problems
remembering what had happened.
Hollinger identified damage throughout the IT department. In the breakroom, chairs
were overturned and torn and the refrigerator was pulled out. In the hallway, a knife was stuck
in a door jamb. And near Vas’s office, ceiling tiles were removed and electrical and network
wires were cut.
The State charged McMillan with second degree burglary and second degree malicious
mischief.
At trial, McMillan provided expert testimony from a psychologist, Michael Stanfill,
Ph.D. Stanfill testified that because McMillan was under the influence of drugs, he lacked the
capacity to form intent as it related to the burglary charge. Specifically, he stated that McMillan
did not have the capacity to intend to unlawfully enter a building or intend to commit a crime
therein. Stanfill described McMillan as suffering from delusions that people were hiding from
him, following or chasing him, and spying on him.
However, Stanfill testified that McMillan did have the capacity to form an intent
regarding the malicious mischief charge. According to Stanfill, McMillan understood that he
was causing damage to property.
2 No. 50154-6-II
McMillan proposed an instruction that modified the statutory definition of “enters or
remains unlawfully in or upon premises” in the definition of burglary to add a requirement that a
person must be aware that he or she had entered or remained unlawfully. The State argued that
it was only required to prove intent to commit a crime within the building, not intent to enter or
remain unlawfully. The trial court rejected the proposed instruction, finding that the law did not
support it.
McMillan also proposed a jury instruction on first degree criminal trespass as a lesser
included offense of second degree burglary. He based this request on testimony from Stanfill,
who stated that McMillan told him that he did not realize he was unlawfully in the building until
after he had caused damage inside. McMillan told Stanfill that he came to this realization when
Vas confronted him. McMillan argued that from the time of that realization until the police
arrested him, he was committing only the crime of criminal trespass. The trial court rejected the
proposed lesser included offense instruction.
The jury found McMillan guilty of second degree burglary, not guilty of second degree
malicious mischief, and guilty of the lesser offense of third degree malicious mischief.
McMillan appeals his convictions.
ANALYSIS
A. BURGLARY INSTRUCTION
McMillan argues that the court erred in declining to give his proposed instruction that
modified the statutory definition of “enters or remains unlawfully” to add a knowledge
requirement. We disagree.
3 No. 50154-6-II
1. Legal Principles
In general, we review a trial court’s choice of jury instructions for an abuse of discretion.
State v. Hathaway, 161 Wn. App. 634, 647, 251 P.3d 253 (2011). However, we review de novo
the refusal to give an instruction based on a ruling of law. State v. Cordero, 170 Wn. App. 351,
369, 284 P.3d 773 (2012).
Jury instructions are appropriate if they allow a defendant to argue his or her theories of
the case, are not misleading, and when read as a whole properly state the applicable law. State v.
Aguirre, 168 Wn.2d 350, 363-64, 229 P.3d 669 (2010). It is not error to refuse to give a specific
instruction when a more general instruction adequately explains the law and allows each party to
argue its theories of the case. Hathaway, 161 Wn. App. at 647.
2. Analysis
Under RCW 9A.52.030(1), a person is guilty of second degree burglary when he or she
“enters or remains unlawfully” in a building with the intent to commit a crime therein. RCW
9A.52.010(2) states, “A person ‘enters or remains unlawfully’ in or upon premises when he or
she is not then licensed, invited, or otherwise privileged to so enter or remain.” The trial court
gave a jury instruction that was virtually identical to RCW 9A.52.010(2). The same language is
contained in Washington Pattern Instruction Criminal 65.02.1
McMillan proposed that additional language be inserted at the end of the standard
instruction: “and is aware of the fact that he or she is not then licensed, invited, or otherwise
privileged to so enter or remain.” Clerk’s Papers at 66 (emphasis added). He claims that a
1 11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 65.02, at 39 (4th ed. 2016).
4 No. 50154-6-II
knowledge component must be implied in the burglary statute. However, neither RCW
9A.52.030(1) nor RCW 9A.52.010(2) support this argument. RCW 9A.52.030(1) does not state
that a person must “knowingly” enter or remain in a building unlawfully in order to commit
burglary, just that he or she enter or remain unlawfully.
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Filed Washington State Court of Appeals Division Two
August 7, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 50154-6-II
Respondent,
v. UNPUBLISHED OPINION
JOEY LEE McMILLAN,
Appellant.
MAXA, C.J. – Joey McMillan appeals his convictions of second degree burglary and third
degree malicious mischief. We hold that the trial court did not err in declining to give two jury
instructions that McMillan proposed: (1) an instruction that modified the statutory definition of
“enters or remains unlawfully” to add a knowledge requirement, and (2) a lesser included offense
instruction for first degree criminal trespass. Accordingly, we affirm McMillan’s convictions.
FACTS
On Saturday, June 25, 2016, Noel Vas went into the Washington State Auditor’s Office
in Tumwater, where he worked. He noticed some ceiling tiles and wires dangling near the wall
and saw McMillan in a co-worker’s cubicle on his hands and knees. Vas called 911 and reported
that there was an intruder in the building.
Tumwater Police Officer Tye Hollinger located McMillan inside the building. Hollinger
arrested McMillan and in a search incident to arrest discovered what appeared to be a used
hypodermic syringe. Hollinger spoke with McMillan, who explained that earlier that day he had
purchased heroin and methamphetamine and used both at the same time. He admitted entering No. 50154-6-II
the building through a back door that had not been properly secured, and he admitted causing
damage to the facility. McMillan explained that he went into the building because people were
hiding from him.
Hollinger believed that McMillan was under the influence of methamphetamine. But
Hollinger noted that McMillan was able to speak coherently and cooperatively, that he had no
difficulties speaking with McMillan, and that McMillan appeared to have no problems
remembering what had happened.
Hollinger identified damage throughout the IT department. In the breakroom, chairs
were overturned and torn and the refrigerator was pulled out. In the hallway, a knife was stuck
in a door jamb. And near Vas’s office, ceiling tiles were removed and electrical and network
wires were cut.
The State charged McMillan with second degree burglary and second degree malicious
mischief.
At trial, McMillan provided expert testimony from a psychologist, Michael Stanfill,
Ph.D. Stanfill testified that because McMillan was under the influence of drugs, he lacked the
capacity to form intent as it related to the burglary charge. Specifically, he stated that McMillan
did not have the capacity to intend to unlawfully enter a building or intend to commit a crime
therein. Stanfill described McMillan as suffering from delusions that people were hiding from
him, following or chasing him, and spying on him.
However, Stanfill testified that McMillan did have the capacity to form an intent
regarding the malicious mischief charge. According to Stanfill, McMillan understood that he
was causing damage to property.
2 No. 50154-6-II
McMillan proposed an instruction that modified the statutory definition of “enters or
remains unlawfully in or upon premises” in the definition of burglary to add a requirement that a
person must be aware that he or she had entered or remained unlawfully. The State argued that
it was only required to prove intent to commit a crime within the building, not intent to enter or
remain unlawfully. The trial court rejected the proposed instruction, finding that the law did not
support it.
McMillan also proposed a jury instruction on first degree criminal trespass as a lesser
included offense of second degree burglary. He based this request on testimony from Stanfill,
who stated that McMillan told him that he did not realize he was unlawfully in the building until
after he had caused damage inside. McMillan told Stanfill that he came to this realization when
Vas confronted him. McMillan argued that from the time of that realization until the police
arrested him, he was committing only the crime of criminal trespass. The trial court rejected the
proposed lesser included offense instruction.
The jury found McMillan guilty of second degree burglary, not guilty of second degree
malicious mischief, and guilty of the lesser offense of third degree malicious mischief.
McMillan appeals his convictions.
ANALYSIS
A. BURGLARY INSTRUCTION
McMillan argues that the court erred in declining to give his proposed instruction that
modified the statutory definition of “enters or remains unlawfully” to add a knowledge
requirement. We disagree.
3 No. 50154-6-II
1. Legal Principles
In general, we review a trial court’s choice of jury instructions for an abuse of discretion.
State v. Hathaway, 161 Wn. App. 634, 647, 251 P.3d 253 (2011). However, we review de novo
the refusal to give an instruction based on a ruling of law. State v. Cordero, 170 Wn. App. 351,
369, 284 P.3d 773 (2012).
Jury instructions are appropriate if they allow a defendant to argue his or her theories of
the case, are not misleading, and when read as a whole properly state the applicable law. State v.
Aguirre, 168 Wn.2d 350, 363-64, 229 P.3d 669 (2010). It is not error to refuse to give a specific
instruction when a more general instruction adequately explains the law and allows each party to
argue its theories of the case. Hathaway, 161 Wn. App. at 647.
2. Analysis
Under RCW 9A.52.030(1), a person is guilty of second degree burglary when he or she
“enters or remains unlawfully” in a building with the intent to commit a crime therein. RCW
9A.52.010(2) states, “A person ‘enters or remains unlawfully’ in or upon premises when he or
she is not then licensed, invited, or otherwise privileged to so enter or remain.” The trial court
gave a jury instruction that was virtually identical to RCW 9A.52.010(2). The same language is
contained in Washington Pattern Instruction Criminal 65.02.1
McMillan proposed that additional language be inserted at the end of the standard
instruction: “and is aware of the fact that he or she is not then licensed, invited, or otherwise
privileged to so enter or remain.” Clerk’s Papers at 66 (emphasis added). He claims that a
1 11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 65.02, at 39 (4th ed. 2016).
4 No. 50154-6-II
knowledge component must be implied in the burglary statute. However, neither RCW
9A.52.030(1) nor RCW 9A.52.010(2) support this argument. RCW 9A.52.030(1) does not state
that a person must “knowingly” enter or remain in a building unlawfully in order to commit
burglary, just that he or she enter or remain unlawfully. The definition of “enters or remains
unlawfully” in RCW 9A.52.010(2) does not contain a knowledge requirement. And the cases
McMillan cites do not support such a requirement. See State v. Allen, 127 Wn. App. 125, 137,
110 P.3d 849 (2005) (comparing intent to commit a crime before and after entering building
lawfully and unlawfully).
Further, the legislature imposed an express knowledge requirement for criminal trespass,
which occurs when a defendant “knowingly enters or remains unlawfully in a building.” RCW
9A.52.070(1) (emphasis added). The absence of the same language in the burglary statute shows
that the legislature did not intend to impose such a requirement for burglary. See State v.
Slattum, 173 Wn. App. 640, 655, 295 P.3d 788, 796 (2013) (stating that when the legislature
omits language from a statute, the court will not read the omitted language into the statute).
RCW 9A.52.010(2) states the applicable definition of “enters or remains unlawfully.”
We hold that the trial court did not err by giving an instruction that used the statutory language.
See State v. Harris, 164 Wn. App. 377, 387, 263 P.3d 1276 (2011) (stating that a trial court
should instruct based on the statutory language when the statute expresses the law governing the
case).
B. LESSER INCLUDED OFFENSE INSTRUCTION – CRIMINAL TRESPASS
McMillan argues that the trial court erred in declining to give a lesser included offense
instruction on first degree criminal trespass. We disagree.
5 No. 50154-6-II
A defendant is entitled to a lesser included instruction if “(1) each element of the lesser
offense is a necessary element of the offense charged (legal prong) and (2) the evidence, viewed
most favorably to the defendant, supports an inference that only the lesser crime was committed
(factual prong).” State v. Hahn, 174 Wn.2d 126, 129, 271 P.3d 892 (2012) (citing State v.
Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978)).
A lesser included offense instruction must be given if requested when the evidence would
allow the jury to find the defendant guilty of the lesser offense and acquit him or her of the
greater offense. State v. Fernandez-Medina, 141 Wn.2d 448, 456, 6 P.3d 1150 (2000).
However, “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.” Id.
As noted above, the elements of second degree burglary are entering or remaining
unlawfully in a building with the intent to commit a crime therein. RCW 9A.52.030(1). First
degree criminal trespass occurs when the defendant “knowingly enters or remains unlawfully in
a building.” RCW 9A.52.070(1).
2. Factual Prong Analysis
Here, the parties focus only on the factual prong of the test for giving a lesser included
offense instruction. Therefore, we do not address the legal prong: whether first degree criminal
trespass is a lesser included offense of second degree burglary.2
2 Several cases hold that first degree criminal trespass is a lesser included offense of second degree burglary. E.g., State v. Olson, 182 Wn. App. 362, 375, 329 P.3d 121 (2014). However, as discussed above, a knowing unlawful entry is required for first degree criminal trespass but not for second degree burglary. Therefore, we question whether the legal prong is satisfied here.
6 No. 50154-6-II
The issue is whether the evidence supports an inference that McMillan committed only
first degree criminal trespass. McMillan argues that the evidence supported a finding that (1) he
did not have the mental capacity to know that he was not authorized to enter or remain in the
building when he damaged the property inside; (2) he became aware that he was in the building
unlawfully only after Vas confronted him, when the damage already had occurred; and (3) he
committed criminal trespass when he remained in the building after becoming aware that he was
in the building unlawfully. McMillan claims that these findings would have allowed the jury to
convict him of criminal trespass but acquit him of burglary.
However, McMillan’s argument is based on his position that a person “enters or remains
unlawfully” in a building only if the person is aware that he or she is acting unlawfully. As
discussed above, we reject that position. Therefore, the only evidence presented to the jury was
that McMillan entered the building unlawfully and also remained in the building unlawfully
during the entire time he was inside. And the undisputed evidence from Stanfill was that
McMillan had the capacity to intend to damage property inside the building. Therefore, the jury
could not have found him guilty only of criminal trespass during the time he remained in the
building but after he caused the damage.
We hold that the trial court did not err in denying McMillan’s request for a lesser
included instruction.
7 No. 50154-6-II
CONCLUSION
We affirm McMillan’s convictions.
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.
MAXA, C.J. We concur:
JOHANSON, J.
SUTTON, J.