State v. Johnson

132 P.3d 737, 132 Wash. App. 400
Court of Appeals of Washington·Decided March 7, 2006·No. No. 31830-0-II·Published·Cited by 25 cases

Opinion

Quinn-Brintnall, C.J.

¶1 — Ronald Johnson appeals his conviction for second degree burglary, arguing that because the garage he unlawfully entered was missing its overhead door it is not a building as that term is used in the statutory definition of burglary. Because the statutory definition of a building is broad enough to include the garage in this case and the State presented sufficient evidence to allow a rational jury to find beyond a reasonable doubt that the garage belonging to Andria Simcoe and her husband is a building, we affirm Johnson’s conviction.

FACTS

¶2 On September 16, 2003, Simcoe saw a man she did not know walking along her driveway, toward the street and away from her garage. The man was carrying tools she [404] recognized as hers. She normally stored the tools inside the garage; she later discovered they were no longer there. Simcoe identified Johnson as the man she saw walking away from her garage carrying her tools. Johnson did not have permission to enter the garage or take the tools.

¶3 The garage was not attached to the house.1 The Simcoes stored tools, lawn equipment, and personal belongings in the garage. The garage was a permanent structure, built in the same wood-framed style as the house. It had a concrete floor, a roof, and four sides. The front side had an opening for a vehicle garage door, but no door was installed. This meant that the garage was not and could not be fully enclosed. Because of the missing door, the garage was enclosed on three sides but open on the fourth like a shop or a bay.

¶4 The State charged Johnson with second degree burglary and third degree theft. Johnson unsuccessfully moved to dismiss the charges prior to trial, arguing that because the missing garage door meant that the garage could not be secured, it was not a building as that term is used in the second degree burglary statute.

¶5 At trial, the trial court rejected the defense definition of building2 and gave the jury a standard jury instruction: [405] “Building, in addition to its ordinary meaning, includes any dwelling, fenced area, vehicle, railway car, cargo container or any other structure used mainly for lodging of persons or for carrying on business therein, or for the use, sale or deposit of goods.” Clerk’s Papers (CP) at 58; see 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 2.05, at 24 (2d ed. 1994). The parties argued to the jury whether the garage met that definition.

¶6 The State also asked that the court’s elements instruction for second degree burglary omit the means of unlawfully remaining. The defense acquiesced in the State’s request to omit the “or remaining” language, but the court inadvertently included “remaining” in element (2), the intent element.3 CP at 48.

¶7 The jury convicted Johnson as charged, and the court imposed a standard range sentence of 68 months for the burglary and suspended a 12-month sentence on the third degree theft conviction. Johnson appeals his burglary conviction only.

¶8 On appeal, Johnson’s counsel contends that the State failed to present sufficient evidence to support the jury’s verdict finding him guilty of burglary because the Simcoes’ garage was not a building. He contends that without a garage door, the garage had only three complete sides and was, therefore, not a building as a matter of law. Alternatively, he argues that the statutory definition of building is ambiguous.

¶9 Johnson’s counsel also argues that he was deprived of his right to a unanimous jury because the instructions allowed individual jurors to convict him under either the [406] unlawful entry or the unlawful remaining means of committing burglary.

¶10 In his pro se statement of additional grounds for review (SAG),4 Johnson raises a cluster of claims, all premised on the notion that the detached garage was a unit of a multi-unit building, a unit that was not a “building” because it was not “separately secured.” He also argues that the trial court violated his right to a speedy trial, that his counsel was ineffective for failing to subpoena witnesses, and that the State committed misconduct during closing argument.

ANALYSIS

Definition of Building

¶11 We review the meaning of a statutory definition de novo, as an issue of law. State v. Wentz, 149 Wn.2d 342, 346, 68 P.3d 282 (2003) (interpreting the definition of building as it relates to burglary). Once we determine the proper construction or meaning of the statute, however, whether the evidence produced at trial matches or meets that definition is a factual question for the trier of fact that we review for sufficiency of the evidence.5 See Wentz, 149 Wn.2d at 347, 352 (citing to sufficiency standards and applying those standards); State v. Gans, 76 Wn. App. 445, 446-47, 452, 886 P.2d 578 (1994), overruled on other grounds by Wentz, 149 Wn.2d 342.

¶12 Second degree burglary includes an element of unlawfully entering or remaining “in a building other than a vehicle or a dwelling.” RCW 9A.52.030(1). It is this unlawful entry or remaining in a building that creates liability for burglary above and beyond the independent crime intended [407] within that building, commonly theft. Washington’s Criminal Code defines “building”:

[I]n addition to its ordinary meaning, includes any dwelling, fenced area, vehicle, railway car, cargo container, or any other structure used for lodging of persons or for carrying on business therein, or for the use, sale or deposit of goods; each unit of a building consisting of two or more units separately secured or occupied is a separate building.

RCW 9A.04.110(5).

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State v. Johnson, 132 P.3d 737, 132 Wash. App. 400 (Wash. Ct. App. 2006).

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