State v. Jensen

789 P.2d 772, 57 Wash. App. 501, 1990 Wash. App. LEXIS 130
CourtCourt of Appeals of Washington
DecidedApril 16, 1990
Docket22928-1-I; 22929-0-I
StatusPublished
Cited by10 cases

This text of 789 P.2d 772 (State v. Jensen) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Jensen, 789 P.2d 772, 57 Wash. App. 501, 1990 Wash. App. LEXIS 130 (Wash. Ct. App. 1990).

Opinions

Swanson, J.

In this consolidated appeal, Michael Jensen challenges the sufficiency of the evidence supporting his convictions in juvenile court for second degree burglary and intimidating a witness.

I

Second Degree Burglary

At the fact-finding hearing, Vickie Jensen, Michael's mother, testified that she left her house for work at about 9:00 a.m. on June 10, 1988. Mrs. Jensen returned home shortly after noon and noticed that the living room was "messed up." Michael's father returned home shortly thereafter and discovered that the back door had been kicked in and that approximately $280 worth of silver ingots were missing. The Jensens later recovered the silver by paying $150 to a drug dealer. When confronted with the silver, Michael admitted having taken and sold it. Michael also told a friend, John Fradet, that he had ransacked the house and taken the silver.

The Jensens had been experiencing problems for some time related to Michael's drug and alcohol usage. At the time of the burglary, Michael was living in a trailer parked in his parents' front yard, provided by his parents because of his drug activity; the Jensens had taken away Michael's house key and made it very clear that he was not allowed in [503]*503the family home without one or both parents present. The Jensens testified:

[w]hen we are there, Michael has permission to be in the house. But when we are not there, Michael has no permission and no keys to get in the house.

Counsel for Michael argued that, based upon the evidence, there was a reasonable doubt whether Michael had permission to enter the house. The trial court disagreed and found essentially that Michael entered the Jensen residence without permission with the intent to commit the crime of theft therein. Based on these findings, the court concluded that Michael Jensen was guilty as charged.1

[504]*504The test on review of a challenge to the sufficiency of the evidence is whether the appellate court can say, after reviewing the evidence in the light most favorable to the prosecution, that any rational trier of fact could have found the essential elements of the crime to have been established beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (citing Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2871 (1979)). A challenge to the sufficiency of the evidence admits all inferences that can reasonably be drawn therefrom. State v. McDaniels, 39 Wn. App. 236, 239, 692 P.2d 894 (1984).

A person is guilty of second degree burglary if, "with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a building . . .". RCW 9A.52.030(1). A person "'enters or remains unlawfully' in or upon premises when he is not then licensed, invited, or otherwise privileged to so enter or remain." RCW 9A.52.010(3).

Michael first contends that there was insufficient evidence to support the trial court's finding that he was not permitted to enter the house in his parents' absence. In particular, Michael points to his parents' testimony that he was permitted to enter the house under certain conditions, i.e., to eat and shower and when he was drug free. He notes that there was no evidence that he was on drugs when he kicked in the back door and that he had expressed an intention to John Fradet on the morning of the burglary to enter the house to "munch."

Although the precise scope of the conditions governing Michael's access to his parents' house was not clearly developed at trial, both of his parents testified that Michael was not permitted to enter the house in their absence. This evidence was reinforced by the fact that the Jensens had taken away Michael's house key and that Michael had to break down the door to enter the house. In addition, the parents had provided alternative living quarters outside of the house. Other than the passing comment by Michael to John Fradet, there was no evidence of any intention to [505]*505enter the house for lawful purposes. Michael admitted to Fradet and to his parents that he had ransacked the house and stolen the silver. Under these circumstances, substantial evidence supports the trial court's findings of fact that Michael was inside the Jensen residence without permission, other living quarters having been provided because of his drug activity, and that Michael was not allowed in the family home in the absence of his parents. Cf., e.g., State v. Schneider, 36 Wn. App. 237, 241, 673 P.2d 200 (1983).

Michael next contends that the evidence was insufficient to show absence of permission to enter or remain because he was privileged as a matter of law to enter his parents' house. If he had a right or privilege to enter his parents' home, his entry was not unlawful and he could not be guilty of burglary. He maintains that such a privilege arises from statutorily based obligations imposed on parents to provide their children with food, shelter, and other necessities. As appellant notes, the Legislature has established the crime of family nonsupport. See RCW 26.20.035. Appellant suggests that parents are powerless to withdraw such a privilege unilaterally and that it can be terminated or restricted only by some formal court order or proceeding.

Appellant relies primarily on State v. Steinbach, 101 Wn.2d 460, 679 P.2d 369 (1984). In Steinbach, the juvenile defendant had experienced difficulties in living with her mother and petitioned for alternative residential placement (ARP) pursuant to RCW 13.32A. After the petition was granted, the mother informed the defendant that she could not stay in the home because of the court order. Although the mother told the defendant that she could visit if she called first, she did not absolutely prohibit her daughter from entering the house.

Shortly after entry of the order establishing the ARP, the defendant and several companions entered the mother's home through a window and removed a number of items. The defendant was subsequently convicted of second degree burglary, and this court affirmed. State v. Stein-bach, 35 Wn. App. 473, 667 P.2d 641 (1983).

[506]*506On further review, our Supreme Court, in a 5-to-4 decision, reversed. State v. Steinbach, 101 Wn.2d 460, 679 P.2d 369 (1984).

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Bluebook (online)
789 P.2d 772, 57 Wash. App. 501, 1990 Wash. App. LEXIS 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jensen-washctapp-1990.