State v. Moreno

• Court: Washington Supreme Court
• Decided: November 24, 2021
• Docket: 99147-2
• Status: Published

Opinion

NOTICE: SLIP OPINION (not the court’s final written decision)

The opinion that begins on the next page is a slip opinion. Slip opinions are the written opinions that are originally filed by the court. A slip opinion is not necessarily the court’s final written decision. Slip opinions can be changed by subsequent court orders. For example, a court may issue an order making substantive changes to a slip opinion or publishing for precedential purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits (for style, grammar, citation, format, punctuation, etc.) are made before the opinions that have precedential value are published in the official reports of court decisions: the Washington Reports 2d and the Washington Appellate Reports. An opinion in the official reports replaces the slip opinion as the official opinion of the court. The slip opinion that begins on the next page is for a published opinion, and it has since been revised for publication in the printed official reports. The official text of the court’s opinion is found in the advance sheets and the bound volumes of the official reports. Also, an electronic version (intended to mirror the language found in the official reports) of the revised opinion can be found, free of charge, at this website: https://www.lexisnexis.com/clients/wareports. For more information about precedential (published) opinions, nonprecedential (unpublished) opinions, slip opinions, and the official reports, see https://www.courts.wa.gov/opinions and the information that is linked there. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON IN CLERK’S OFFICE NOVEMBER 24, 2021 SUPREME COURT, STATE OF WASHINGTON NOVEMBER 24, 2021 ERIN L. LENNON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) ) No. 99147-2 Respondent, ) ) v. ) En Banc ) FRANCISCO RUBEN MORENO, ) ) Petitioner. ) ) Filed : November 24, 2021

JOHNSON, J.—This case presents the sole issue of whether knowledge of

unlawfully entering or remaining is an implied essential element of first degree

burglary. Francisco Moreno was convicted of first degree burglary, which is

defined by statute and requires the State to prove that an accused (1) entered or

remained unlawfully in a building, (2) with an intent to commit a crime. RCW

9A.52.020(1). On appeal, Moreno argued that both the charging document and jury

instructions were constitutionally deficient because they omitted the implied

essential element of knowledge of the unlawfulness of his entering or remaining. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Moreno, No. 99147-2

The Court of Appeals affirmed Moreno’s convictions, concluding that no implied

essential element exists for first degree burglary. We affirm the Court of Appeals. 1

FACTS & PROCEDURAL HISTORY

Moreno’s burglary conviction resulted from him assaulting Ashley Vollmar

after breaking into a townhome owned by Vollmar on April 8, 2018. Vollmar and

Moreno began a relationship and started living together in the townhome in August

2017. Vollmar testified that she told Moreno he could no longer live in the

townhome in October 2017 and that she changed the locks. Because Vollmar found

out that she and Moreno were expecting a child, she attempted to continue their

relationship. Nonetheless, she ended their relationship in January 2018.

Moreno disputed the length of their relationship in addition to when and

whether Vollmar prohibited him from living in the townhome, and Moreno’s

primary defense to the first degree burglary charge was that he was authorized to

be in the townhome. Moreno testified that he lived with Vollmar in the townhome

up to the time of the incident on April 8, 2018. He also contended that Vollmar had

never changed the locks. He testified that he split home expenses with Vollmar,

that he kept his personal belongings and cars at the townhome, and that he picked

up his tribal checks there.

1 The Washington Association of Criminal Defense Lawyers filed an amicus brief in support of Moreno.

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Moreno, No. 99147-2

Vollmar testified that on the day of the incident, she retrieved a car Moreno

had taken from her earlier that week after he had picked up a tribal check, which

was being sent to the townhome. She and Moreno spoke on the phone, and Moreno

insisted on coming over, despite warnings from Vollmar that he was not welcome.

Moreno threatened Vollmar over the phone. As Vollmar called 911, she heard her

door being kicked in. She explained that Moreno came into her bedroom where she

was with her son, held her down by her neck, and took her phone. Moreno grabbed

Vollmar’s hair as she tried to get up, but Vollmar was eventually able to break

loose. Vollmar testified that as she ran downstairs, Moreno grabbed her again,

causing her to fall on her knees and stomach. Vollmar was pregnant at the time of

the assault.

Moreno was charged with first degree burglary aggravated by domestic

violence against a pregnant victim, fourth degree assault with domestic violence,

and interfering with reporting domestic violence. 2 The charging document stated,

“That the defendant, on or about the 8th day of April, 2018, with intent to commit

a crime against a person or property therein, did enter and remain unlawfully in the

building of Ashley Vollm[a]r’s residence.” Clerk’s Papers (CP) at 162. The “to

convict” jury instructions repeated the charging language and stated, “(1) That on

2 Moreno was also charged with two counts of second degree unlawful possession of a firearm. He pleaded guilty to one charge, and the court dismissed the other charge.

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Moreno, No. 99147-2

or about the 8th day of April, 2018, the defendant entered or remained unlawfully

in a building.” CP at 128.

The jury instructions provided a definition of “entering or remaining

unlawfully” that mirrored the statutory definition: “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.” CP at 132; RCW 9A.52.010(2). No

objection was raised at the trial court challenging the charging document or jury

instructions.

The jury convicted Moreno on all counts. The court sentenced Moreno to

364 days for both his fourth degree assault and interfering with domestic violence

reporting convictions, and to a 48-month term with 18 months’ community custody

for his first degree burglary conviction. The court ran the sentences concurrently.

Moreno appealed his conviction, arguing for the first time, in part, that his

conviction for first degree burglary should be reversed because the charging

document and jury instructions omitted an implied essential element that a

defendant have knowledge of the unlawfulness of the entering or remaining.

Division One of the Court of Appeals rejected Moreno’s argument.

Moreno then sought discretionary review in this court, and we granted

review limited to the issue of whether knowledge of the unlawfulness of entering

or remaining is an implied essential element of burglary. State v. Moreno, 14 Wn.

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Moreno, No. 99147-2

App. 2d 143, 470 P.3d 507 (2020), review granted in part, 196 Wn.2d 1042

(2021).

ANALYSIS

Moreno alleges constitutional error, claiming the charging document and the

“to convict” jury instructions omitted an implied essential element, arguing that a

charging document is constitutionally deficient unless it contains both the statutory

and nonstatutory essential elements of a crime. State v. Kjorsvik, 117 Wn.2d 93,

101-02, 812 P.2d 86 (1991). We review charging documents de novo. Further, it is

reversible error if the “to convict” jury instructions relieve the State of its burden to

prove each element beyond a reasonable doubt. State v. Brown, 147 Wn.2d 330,

339, 58 P.3d 889 (2002). It is undisputed that knowledge of the unlawfulness of

entering or remaining was not included in the charging document or the “to

convict” instructions. If we accept Moreno’s argument that such knowledge is an

implied essential element of first degree burglary, then both the charging document

and the instructions were constitutionally deficient and reversal is necessarily

required.

Determining whether an implied essential element exists starts as a question

of statutory construction, which we review de novo. “[W]e have concluded that

nonstatutory elements are implied either because they fit within long-standing

principles of law or are derived from our reasoned judgment as to legislative

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Moreno, No. 99147-2

intent.” State v. Miller, 156 Wn.2d 23, 28, 123 P.3d 827 (2005). We have recently

discussed the animating principles involved in impliedly adding a mens rea

element to a criminal statute.

In general, “[w]e construe statutes to avoid constitutional doubt.” But we construe statutes only “to avoid constitutional difficulties when such construction is consistent with the purposes of the statute.” In many cases, these statutory interpretation rules have led the United States Supreme Court and this court to read mens rea elements into statutes where the legislature omitted them. This line of cases does not explicitly discuss the constitutional limits of the police power—it emphasizes interpreting each statute in light of “the background rules of the common law, in which the requirement of some mens rea for a crime is firmly embedded.” But they reflect a consistent concern about criminalizing fundamentally innocent conduct.

State v. Blake, 197 Wn.2d 170, 188-89, 481 P.3d 521 (2021) (alteration in original)

(emphasis added) (citations omitted) (quoting Utter ex rel. State v. Bldg. Indus.

Ass’n of Wash., 182 Wn.2d 398, 434, 341 P.3d 953 (2015); In re Pers. Restraint of

Williams, 121 Wn.2d 655, 665, 853 P.2d 444 (1993); Staples v. United States, 511

U.S. 600, 605, 114 S. Ct. 1793, 128 L. Ed. 2d 608 (1994)). Thus, as a general

proposition, we are primarily concerned with adding mens rea elements to strict

liability criminal statutes that otherwise would have no mental state. Moreover, we

normally imply mens rea elements to such statutes to avoid criminalizing otherwise

innocent conduct in possible violation of due process principles.

6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Moreno, No. 99147-2

Under this statutory challenge, the first step in the analysis is to turn to the

statute’s language and possibly to neighboring provisions and the statutory scheme

for additional guidance.

The statute defining first degree burglary provides:

A person is guilty of burglary in the first degree if, with intent to commit a crime against a person or property therein, he or she enters or remains unlawfully in a building and if, in entering or while in the building or in immediate flight therefrom, the actor or another participant in the crime (a) is armed with a deadly weapon, or (b) assaults any person.

RCW 9A.52.020(1). 3

First degree burglary is defined in chapter 9A.52 RCW, which also defines

the crimes of criminal trespass and vehicle prowling. Chapter 9A.52 RCW includes

definitions of general terms that apply to each of the three crimes. As significant

here, the statute provides a definition of when a person enters or remains

unlawfully: “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.”

RCW 9A.52.010(2).

3 The three statutes defining the various degrees of burglary have identical language with regard to the requirements that an accused “enters or remains unlawfully” with an “intent to commit a crime against a person or property.” See RCW 9A.52.020(1), .025(1), .030(1). The main differences in these statutes is the type of burglarized premises and the presence of aggravating circumstances.

7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Moreno, No. 99147-2

Both parties agree that knowledge of the unlawfulness of entering or

remaining is not a statutory element of first degree burglary 4 and that the statute

contains a mens rea element by requiring proof of an intent to commit a crime.

Because of this, the burglary statute cannot be characterized as a strict liability

crime, which is the traditional context in which we analyze whether adding a mens

rea element is required. Moreno argues, though, that notwithstanding the statutory

element of an intent to commit a crime, we should imply an additional mens rea

element. Moreno does not cite to any cases where we have implied a mens rea

element to a statute that has an existing mental element. And he similarly cites to

no out of state cases in support of adding an implied mens rea element to a

burglary statute or any case invalidating such a statute on the basis that it does not

contain an additional mens rea element.

4 The “to convict” Washington pattern jury instruction for first degree burglary given in this case mirrors the statutory language: “To convict the defendant of the crime of burglary in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt: “(1) That on or about (date) the defendant entered or remained unlawfully in a building; “(2) That the entering or remaining was with intent to commit a crime against a person or property therein; “(3) That in so entering or while in the building or in immediate flight from the building [the defendant] [or] [an accomplice in the crime charged] [was armed with a deadly weapon] [or] [assaulted a person]; and “(4) That any of these acts occurred in the State of Washington.” 11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 60.02, at 5 (5th ed. 2021).

8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Moreno, No. 99147-2

We have not analyzed whether a defendant’s knowledge of the unlawfulness

of their entering or remaining is an implied essential element of first degree

burglary. The Court of Appeals in Kilponen rejected a defendant’s argument that

jury instructions were constitutionally deficient by omitting such an implied

element. State v. Kilponen, 47 Wn. App. 912, 737 P.2d 1024 (1987). First, the

Court of Appeals noted that it need not consider this argument because the

defendant had invited the error. Nonetheless, the court proceeded to analyze the

argument, concluding that “RCW 9A.52.020 does not require the State to prove the

defendant knew he was acting unlawfully.” Kilponen, 47 Wn. App. at 919. Instead,

the court concluded that an intent to commit a crime is the only mens rea element

in the first degree burglary statute. Kilponen, 47 Wn. App. at 919.

Although this court has not directly addressed whether knowledge of the

unlawfulness of the entering or remaining is an essential element of first degree

burglary, we have noted that the “[t]he intent required by our burglary statutes is

simply the intent to commit any crime against a person or property inside the

burglarized premises.” State v. Bergeron, 105 Wn.2d 1, 4, 711 P.2d 1000 (1985).

Combining that description of the mens rea in the statute with the analysis in

Kilponen, the Court of Appeals in this case concluded that the plain language of

9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Moreno, No. 99147-2

the statute defining first degree burglary shows that no additional mens rea

requirement impliedly exists. 5 We agree.

The surrounding provisions in chapter 9A.52 RCW confirm the conclusion

that burglary has no additional implied mens rea element. For any burglary charge,

if an accused entered or remained unlawfully, a permissible inference arises that

the accused acted with the requisite criminal intent to commit a crime unless other

evidence is presented. RCW 9A.52.040. 6 This statutory inference is permitted

without requiring that the defendant know that their entering or remaining was

unlawful. Also, criminal trespass is the only crime in chapter 9A.52 RCW that the

legislature statutorily provided defenses, including that an accused “reasonably

believed that the owner of the premises, or other person empowered to license

access thereto, would have licensed him or her to enter or remain.” RCW

9A.52.090(3). This defense is related to the element of criminal trespass that a

5 The Court of Appeals also rejected Moreno’s argument that because knowledge of the unlawfulness of entering or remaining is a statutory element of first degree criminal trespass, then it is also an element of first degree burglary. The court declined to follow the reasoning in State v. Soto, 45 Wn. App. 839, 727 P.2d 999 (1986), which concluded that first degree criminal trespass was a lesser included offense of second degree burglary. Because this case involves a challenge to the adequacy of the charging document and jury instructions, and since Moreno did not request a lesser included instruction for criminal trespass, we need not address any claimed conflict between the elements of burglary and criminal trespass. 6 The statute provides the following: “In any prosecution for burglary, any person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein, unless such entering or remaining shall be explained by evidence satisfactory to the trier of fact to have been made without such criminal intent.”

10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Moreno, No. 99147-2

defendant “know” that their entering or remaining was unlawful. See RCW

9A.52.070(1). The general statutory definition of “knowledge” states:

A person knows or acts knowingly or with knowledge when: (i) He or she is aware of a fact, facts, or circumstances or result described by a statute defining an offense; or (ii) He or she has information which would lead a reasonable person in the same situation to believe that facts exist which facts are described by a statute defining an offense.

RCW 9A.08.010(1)(b) (emphasis added). Therefore, the defense that an accused

has a reasonable belief that their entering or remaining was lawful excuses a

criminal trespass because it shows an accused lacked knowledge of the

unlawfulness of their entering or remaining. Were that defense to apply to

burglary, it could support the conclusion that knowledge of unlawfully entering or

remaining is also an essential element of burglary. But this reading does not

comport with the intent to commit a crime element for first degree burglary.

Again, we have not directly analyzed whether this defense is available to any

burglary charge, but in State v. Montague, 10 Wn. App. 911, 521 P.2d 64 (1974),

the Court of Appeals considered a defendant’s argument that the trial court should

have allowed him to present a jury instruction to a former first degree burglary

statute 7 that it was a defense if the defendant reasonably believed that the owner of

7 The prior version of the statute defined the crime in relevant part as “[e]very person who, with intent to commit some crime therein, shall enter in the night time, the dwelling house of another.” LAWS OF 1909 ch. 249, § 326 (codified as former RCW 9.19.010 (1909)).

11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Moreno, No. 99147-2

the home consented to the defendant burglarizing the home. While observing that

the mens rea element for burglary was the intent to commit a crime, the court also

highlighted that a defendant who “unlawfully” entered raised a rebuttable

presumption that the defendant had an intent to commit a crime. LAWS of 1909, ch.

249, § 328 (codified as former RCW 9.19.030 (1909)). Thus, the court stated that

unlawful entry “implies the existence of a ‘guilty mind,’” which might be negated

by the defendant’s reasonable belief he was authorized to be in the home.

Montague, 10 Wn. App. at 918. But the court held the defendant’s alleged

reasonable belief lacked good faith because the defendant would have been a

participant in a crime even assuming he had consent to burglarize the home.

Montague’s statement that unlawful entry presumes a “guilty mind” under

the former statutory scheme governing burglary does not apply under the current

definitions of burglary to show that knowledge is required for unlawfully entering

or remaining. First, the presumption of criminal intent from unlawful entry under

the former statute, former RCW 9.19.030, was revised to include a permissible

inference of intent in the current statutory scheme. See RCW 9A.52.040. This

change breaks the connection between these elements. Moreover, the former

statutory scheme provided no definition of unlawful entry, but the current scheme

provides a definition of unlawfully entering or remaining that does not include any

mens rea element. RCW 9A.52.010(2). It follows that the inference that an accused

12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Moreno, No. 99147-2

acts with criminal intent when they unlawfully entered or remained does not

similarly show that a “guilty mind” is required for unlawfully entering or

remaining under the current scheme.

Although the various divisions of the Court of Appeals appear to differ

regarding whether the statutory defenses to criminal trespass are available for a

burglary charge under the current statutory scheme, these cases all demonstrate

that knowledge of the unlawfulness of entering or remaining is not an implied

essential element of burglary because they conclude that the statutory definition of

unlawfully entering or remaining, which does not contain a mens rea element, is

controlling for a burglary charge. RCW 9A.52.010(2).

Division Three of the Court of Appeals has concluded the reasonable belief

defense to criminal trespass could negate the unlawful entering or remaining

element for a burglary charge. State v. Ayala Ponce, 166 Wn. App. 409, 269 P.3d

408 (2012). However, in Ponce, the court reasoned that the “to convict” jury

instructions correctly stated the law by mirroring the statutory definition of the

element of unlawfully entering or remaining. Because the instructions did not

prevent the defendant from arguing he had a reasonable belief that he was

permitted in the building, the court found no error in failing to give the instruction

on the reasonable belief defense. See also State v. Cordero, 170 Wn. App. 351,

370, 284 P.3d 773 (2012) (clarifying that as long as the instructions correctly

13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Moreno, No. 99147-2

informed the jury of the applicable law on burglary, then a defendant was not

entitled to a jury instruction on a statutory defense to criminal trespass).

Division Two of the Court of Appeals has concluded the statutory defenses

to criminal trespass should not be provided for any burglary charge. State v.

Jensen, 149 Wn. App. 393, 401, 203 P.3d 393 (2009). In Jensen, the court

emphasized that the statute’s plain language explicitly applies those defenses only

to criminal trespass. RCW 9A.52.090 (“In any prosecution under RCW 9A.52.070

[describing first degree criminal trespass] and 9A.52.080 [describing second

degree criminal trespass], it is a defense that . . . .”). The court declined to expand

those statutory defenses to other crimes. Jensen, 149 Wn. App. at 401. 8

Jensen’s conclusion that the statutorily enumerated defenses to criminal

trespass, including a reasonable belief that one is authorized to enter or remain, do

not apply to a burglary charge supports our decision that knowledge of the

unlawfulness of the entering or remaining is not an element of first degree

burglary.

To the extent that Division Three cases suggest otherwise, they hold that as

long as the “to convict” instruction uses the statutory definition of unlawfully

entering or remaining, then no error exists because juries are apprised of the

8 Division One of the Court of Appeals has agreed with Jensen’s analysis. State v. Olson, 182 Wn. App. 362, 377, 329 P.3d 121 (2014).

14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Moreno, No. 99147-2

applicable law and the defendant is able to argue their theory of the case. 9 Thus, all

these cases support the conclusion that knowledge of unlawfully entering or

remaining is not an implied element because they recognize that the statutory

language for unlawfully entering or remaining controls, which includes no

knowledge requirement as applied to a burglary charge.

But Moreno makes three arguments in support of his contention that we

should imply an element of knowledge of the unlawfulness of entering or

remaining into the first degree burglary statute. First, Moreno argues that the

presumption in favor of mens rea supports his view that the State must prove

knowledge that the entering or remaining was unlawful for first degree burglary.

Suppl. Br. of Pet’r at 5-7. Generally, conduct must be accompanied by “culpable

state of mind” in order to be considered criminal. Morissette v. United States, 342

U.S. 246, 250, 72 S. Ct. 240, 96 L. Ed. 288 (1952). As previously noted, we

normally imply mens rea elements when a constitutional infirmity exists in a strict

liability criminal statute, such as when a mens rea element is necessary to avoid

criminalizing otherwise innocent conduct. See, e.g., State v. Williams, 158 Wn.2d

904, 908-16, 148 P.3d 993 (2006) (reading in a mens rea requirement to unlawful

possession of a firearm pursuant to RCW 9.41.190(1)); State v. Anderson, 141

9 Significantly, Moreno does not show that he was unable to argue his theory that he was in the townhome lawfully, and the jury was provided with the instructions that mirrored the language of the statute for unlawfully entering or remaining.

15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Moreno, No. 99147-2

Wn.2d 357, 360-67, 5 P.3d 1247 (2000) (same for RCW 9.41.040)). Because the

first degree burglary statute requires proof of an intent to commit a crime, these

cases alone do not provide a basis to analyze whether first degree burglary requires

knowledge that the entry and remaining is unlawful in addition to requiring intent

to commit a crime. We are not persuaded an additional mens rea element is

In support of a broader view of how the presumption of mens rea may still

apply to statutes containing a mens rea element, Moreno cites to United States

Supreme Court cases involving statutory interpretation of a general “knowledge”

requirement, where the Court has highlighted “that the presumption in favor of a

scienter requirement should apply to each of the statutory elements that criminalize

otherwise innocent conduct.” United States v. X-Citement Video, Inc., 513 U.S. 64,

72, 115 S. Ct. 464, 130 L. Ed. 2d 372 (1994). But here, given that burglary requires

intent to commit a criminal act, innocent conduct is lacking.

The Court applied this principle to a federal statute that made it a crime to

“‘knowingly’” violate the prohibition on various persons, including those aliens

who are “‘illegally or unlawfully in the United States,’” from possessing a firearm.

Rehaif v. United States, 588 U.S. ___, 139 S. Ct. 2191, 2194, 204 L. Ed. 2d 594

(2019) (quoting 18 U.S.C. §§ 924(a)(2) (emphasis omitted), 922(g)(5)(A)). The

Court recognized that the presumption in favor of mens rea “applies with equal or

16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Moreno, No. 99147-2

greater force when Congress includes a general scienter provision in the statute

itself.” Rehaif, 139 S. Ct. at 2195. The Court concluded the statute required proof

that the defendant knew they possessed a firearm and knew they were in the United

States illegally or unlawfully. The Court reasoned if it did not apply knowledge to

each element in the statute, then the statute would punish innocent conduct. If one

did not know of their status as being illegally or unlawfully in the United States,

then they could still be convicted of the crime even if they were partaking in the

entirely innocent conduct of possessing a gun with appropriate licensing. Rehaif,

139 S. Ct. at 2197. The defendant’s “status is the ‘crucial element’ separating

innocent from wrongful conduct.” Rehaif, 139 S. Ct. at 2197 (quoting X-Citement

Video, 513 U.S. at 73). The Court distinguished other statutes involving a “status”

element because the prohibited conduct, such as misappropriation of the

government information by a government employee or contractor, would be

wrongful regardless of the defendant’s status. See 18 U.S.C. § 1924(a).

Based on these cases, Moreno argues that the presumption of mens rea

“applies to each essential element of an offense.” Suppl. Br. of Pet’r at 6. However,

Moreno reads these cases too broadly, and we reject this reasoning. First, these

cases involved interpreting a general knowledge requirement, modifying the whole

statute or set out at the beginning of a statute, and the extent to which it applied to

different elements of the statute. Unlike those statutes, Moreno does not show that

17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Moreno, No. 99147-2

the intent to commit a crime under the first degree burglary statute also modifies

the element of unlawfully entering or remaining.

Moreover, unlawfully entering or remaining in the first degree burglary

statute is not the crucial element differentiating between wrongful and innocent

conduct like the defendant’s status in Rehaif. Assuming a person does not know

that their presence is unauthorized, the State is still required to prove the intent to

commit a crime. Intent to commit a criminal act is wrongful conduct unlike

possession of a firearm in Rehaif. And as the State points out, knowledge was

attached to the unlawfully entering or remaining element of criminal trespass

because that statute would otherwise have no mens rea requirement. See, e.g.,

RCW 9A.52.070(1); Suppl. Br. of Resp’t at 8.

Amicus argues that unlawfully entering or remaining is the element that

differentiates between whether conduct constitutes the felony of first degree

burglary or a misdemeanor. Br. of WACDL (Wash. Ass’n of Criminal Def.

Lawyers) as Amicus Curiae at 10-12. Given that a mere intent to commit a crime

on a premises could alone be a misdemeanor, amicus contends that a mens rea

must attach to the unlawfully entering or remaining element because that element

raises the penalty to a felony. But an element that differentiates between a felony

and a misdemeanor is not the same as an element that differentiates between

innocent and criminal conduct. Here, the legislature determined that the element of

18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Moreno, No. 99147-2

unlawfully entering or remaining when accompanied by an intent to commit a

crime should be punished more harshly than a mere intent to commit a crime.

RCW 9A.04.020(1)(d) (stating that it is a purpose of the statutes defining criminal

offenses “[t]o differentiate on reasonable grounds between serious and minor

offenses, and to prescribe proportionate penalties for each”).

Our cases presenting similar issues of statutory construction support this

conclusion. For example, in State v. Brown, we rejected an argument to imply an

element to third degree assault of a police officer that a defendant know the victim

was an officer and that the officer was performing their duties at the time of the

assault. 140 Wn.2d 456, 467, 998 P.2d 321 (2000) (citing RCW 9A.36.031(1)(g)).

In that case, while the State needed to prove that a defendant intended to assault

the victim, we concluded the plain language of the statute did not include a

requirement that the defendant know that the victim was a police officer or

performing their duties. We noted that the legislature had included knowledge of

the victim being a police officer in other statutes, and that the legislature was

permitted to make a choice not to include it in the third degree assault statute.

Brown, 140 Wn.2d at 469.

Second, Moreno argues that our cases analyzing the unlawfully enters or

remains element and the common law offense of burglary support the existence of

an implied essential element. Suppl. Br. of Pet’r at 8-13. Moreno contends our

19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Moreno, No. 99147-2

cases show that knowledge of a license or privilege and its scope are fundamental

parts of the unlawfully entering or remaining element. Moreno draws on cases

analyzing when a child’s presumptive privilege to be in a home is revoked. State v.

Howe, 116 Wn.2d 466, 805 P.2d 806 (1991). In that case, we reasoned that a

parent can revoke a child’s privilege to be in the family home only “if they (1) do

so expressly and unequivocally, and (2) provide some alternative means of

assuring that the parents’ statutory duty of care is met.” Howe, 116 Wn.2d at 477.

The revocation must “be clearly and unequivocally conveyed to the child.” Howe,

116 Wn.2d at 470.

Moreno also relies on cases analyzing the notice required for a revocation of

an invitation for a premises open to the public. See State v. Kutch, 90 Wn. App.

244, 248-49, 951 P.2d 1139 (1998). However, we find this analysis consistent with

the statutory scheme, which requires notification that a person is not licensed or

privileged in certain situations involving public places. See RCW 9A.52.010(2)

(“A license or privilege to enter or remain on improved and apparently used land

that is open to the public at particular times, which is neither fenced nor otherwise

enclosed in a manner to exclude intruders, is not a license or privilege to enter or

remain on the land at other times if notice of prohibited times of entry is posted in

a conspicuous manner.”).

20 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Moreno, No. 99147-2

Moreno further argues that cases involving implied limitations on invitations

show the importance of knowledge of the unlawfulness of the entering or

remaining. State v. Collins, 110 Wn.2d 253, 261, 751 P.2d 837 (1988). In Collins,

we held that an implied limitation on or revocation of a license may exist

depending on the circumstances. In that case, a defendant was invited into a home

to use a phone without express limits on the scope of that license but then

committed a rape and assault once he entered the home. We noted other cases in

which an apparently general invitation to enter was provided, but the “limitation

was plain from the circumstances, and was sufficient to support [a] burglary

conviction.” Collins, 110 Wn.2d at 260. We held the invitation was limited to the

use of the phone only, and therefore the defendant’s entering or remaining was

unlawful by exceeding the scope of the invitation. The defendant’s license was

essentially revoked once he began assaulting the two victims, and we affirmed the

burglary conviction.

The cases involving revocation of a child’s license to be in a family home

are not fully applicable to adults like Moreno based on the unique aspects of the

parent-child relationship. Moreover, in these cases, a license or privilege to enter is

granted, which would tend to negate the element of entering or remaining

unlawfully needed for burglary. A revocation of that license or privilege has the

effect of turning someone’s presence from lawful to unlawful, which is why notice

21 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Moreno, No. 99147-2

is required. On the other hand, when a license or privilege is never granted, no

notice of revocation is required because no authorization exists in the first place.

To the extent that these cases discuss a notice requirement, we find that reasoning

inapplicable here because they involve revocation of an existing license or

privilege.

Next, Moreno argues that the common law definition of burglary shows that

knowledge of the unlawfulness of entering and remaining is an implied essential

element. The common law supplements our criminal statutes but only to the extent

that the common law is not inconsistent with a statute. RCW 9A.04.060. Under the

common law, burglary was once defined “to be the breaking and entering of the

dwelling house of another in the nighttime with the intent to commit a felony.”

State v. Engel, 166 Wn.2d 572, 579, 210 P.3d 1007 (2009) (citing 3 WAYNE R.

LAFAVE & AUSTIN W. SCOTT, JR., SUBSTANTIVE CRIMINAL LAW § 21.1 (2d ed.

2003)). But statutory offenses defining burglary have significantly changed the

elements of burglary, and the “modern-day offense commonly known as burglary

bears little relation to its common-law ancestor.” 3 WAYNE R. LAFAVE,

SUBSTANTIVE CRIMINAL LAW § 21.1, at 268 (3d ed. 2018 & Supp. 2020).

In Bergeron, for example, we held that an intent to commit a specific crime

was not required under our statutory definitions for burglary. 105 Wn.2d at 14-15.

Although the common law definition may have supported the opposite conclusion,

22 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Moreno, No. 99147-2

we emphasized that the statutory definition of burglary required only an intent to

commit any crime. We reasoned that where “‘a statute is plain and unambiguous, it

must be construed in conformity to its obvious meaning without regard to the

previous state of the common law.’” Bergeron, 105 Wn.2d at 15 (quoting State ex

rel. Madden v. Pub. Util. Dist. No. 1, 83 Wn.2d 219, 222, 517 P.2d 585 (1973)).

Nonetheless, Moreno points to the “breaking and entering” element of

common law burglary, “which requires that the burglar intentionally engage in the

conduct of breaking and entering, and perhaps also that he intend that the building

thus broken into be a dwelling house.” 1 WAYNE R. LAFAVE, SUBSTANTIVE

CRIMINAL LAW § 5.2(a), at 458 (3d ed. 2018 & Supp. 2020). However, the

concepts of breaking and nighttime entry were removed from the current statutory

definition of burglary. 10 Moreno argues that we considered the breaking and

entering element of common law burglary in Engel. Suppl. Br. of Pet’r at 10-11.

But Engel utilized the common law definition of burglary to analyze what was

considered a “fenced area,” which was necessary because the statute did not

provide a definition. 166 Wn.2d at 579-80. Here, we have a statutory definition of

unlawfully entering and remaining. RCW 9A.52.010(2). The common law crime of

10 The concepts of breaking and nighttime entry were initially part of the statutory definitions of either first degree or second degree burglary. See LAWS OF 1909, ch. 249, §§ 326, 327 (codified as former RCW 9.19.010, .020).

23 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Moreno, No. 99147-2

burglary does not support Moreno’s contention that we should rewrite the current

statutory definitions.

Last, Moreno contends that because first degree criminal trespass has been

considered by some cases as a lesser included offense of first degree burglary,

knowledge of the unlawfulness of entering or remaining is an implied essential

element of burglary. 11 The parties dedicate significant discussion to the mental

elements of criminal trespass and burglary. But the State contends that we need not

address whether criminal trespass is a lesser included offense of burglary because

Moreno never sought a lesser included instruction, which means that anything we

would decide on that issue would be dicta. Suppl. Br. of Resp’t at 16-17; State ex

rel. Lemon v. Langlie, 45 Wn.2d 82, 89, 273 P.2d 464 (1954).

The State is correct that a decision on whether first degree criminal trespass

is a lesser included offense is not necessary to deciding this case. The only issue

presented by this case is whether knowledge of the unlawfulness of entering or

remaining is an implied essential element of first degree burglary. We affirm the

Court of Appeals and hold that such knowledge is not an implied element of first

degree burglary based on the plain language of the first degree burglary statute. We

conclude the cases suggesting that criminal trespass is a lesser included offense of

11 See, e.g., Olson, 182 Wn. App. at 375; State v. J.P., 130 Wn. App. 887, 895, 125 P.3d 215 (2005); State v. Allen, 127 Wn. App. 945, 950, 113 P.3d 523 (2005); Soto, 45 Wn. App. at 841.

24 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Moreno, No. 99147-2

burglary have no bearing on the analysis of whether an implied element to burglary

is constitutionally required.

Johnson, J.

WE CONCUR:

25 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Moreno, No. 99147-2 (González, C.J., concurring)

No. 99147-2

GONZÁLEZ, C.J. (concurring) – I concur with the majority. I write separately

to stress that trespass and burglary are different crimes with different mental states.

At its core, burglary is entering or unlawfully remaining on someone else’s

property with the intent to commit a different crime there. The mental state for

burglary is the intent to commit some other crime. Trespass, however, is entering

or remaining on someone else’s property knowing it is unlawful to do so. The

mental state for trespass is knowing there is no authority to be on someone else’s

property and entering or remaining anyway. These crimes might overlap as a

matter of fact, but as a matter of law they are distinct. I would take this

opportunity to make that clear.

A lesser included offense of a charged offense is established if “each of the

elements of the lesser offense” is “a necessary element of the offense charged” and

if “the evidence in the case . . . support[s] an inference that the lesser crime was

committed.” State v. Berlin, 133 Wn.2d 541, 545-46, 947 P.2d 700 (1997)

(emphasis added) (citing and reinstating the rule set forth in State v. Workman, 90

Wn.2d 443, 447-48, 584 P.2d 382 (1978)). Under Workman, trespass is not a

lesser included offense of burglary because trespass requires the person to

knowingly enter or remain unlawfully, and burglary does not.

1 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Moreno, No. 99147-2 (González, C.J., concurring)

It is true that both trespass and burglary contain a mens rea element, but

these mens rea elements do not relate to the same action. I recognize that in State

v. Soto, the Court of Appeals held that trespass is a lesser included offense of

burglary because proof of intent, required in burglary, is a higher mens rea than the

knowledge required in criminal trespass. 45 Wn. App. 839, 840-41, 727 P.2d 999

(1986); compare RCW 9A.52.070(1) (a “person is guilty of criminal trespass in the

first degree if he or she knowingly enters or remains unlawfully in a building”

(emphasis added)), with RCW 9A.52.020(1) (a “person is guilty of burglary . . . if,

with intent to commit a crime against a person or property therein, he or she enters

or remains unlawfully in a building” (emphasis added)). But Soto was incorrect

because the mens rea of burglary corresponds to a different action than knowledge

does in trespass. 1 See State v. Gamble, 154 Wn.2d 457, 468, 114 P.3d 646 (2005)

(for a lesser included offense, the mens rea must pertain to the same conduct); see

also State v. Numrich, 197 Wn.2d 1, 15, 480 P.3d 376 (2021).

With these observations, I respectfully concur.

1 Moreno argued that this court held trespass is a lesser included offense in State v. Southerland, but, based on the arguments presented, Southerland presumed error and focused on prejudice. 109 Wn.2d 389, 390-91, 745 P.2d 33 (1987). It did not independently analyze the elements of the crimes.

2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

State v. Moreno (Francisco Ruben)

MADSEN, J. (concurring)—I agree with the majority that knowledge is not an

implied, essential element of burglary. However, I go on to analyze whether proof that

the defendant entered or remained in a building with intent to commit a crime is

sufficient to prove that the defendant knowingly entered or remained in the building

unlawfully. I believe that it does, and therefore, I write separately to state that in my

view, criminal trespass is a lesser included offense of burglary.

For the court to instruct on a lesser included offense, each of the elements of the

lesser offense must be a necessary element of the offense charged and the evidence in the

case must support an inference that the lesser crime was committed. State v. Workman,

90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). If it is possible to commit the greater

offense without committing the lesser offense, the lesser offense is not an included

offense. State v. Stevens, 158 Wn.2d 304, 315, 143 P.3d 817 (2006).

Chapter 9A.52 RCW governs both burglary and trespass offenses. Criminal

trespass in the first degree requires the defendant to knowingly enter or remain

unlawfully in a building. RCW 9A.52.070(1). Burglary requires that the defendant “with For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 99147-2 Madsen, J., concurring

intent to commit a crime against a person or property therein . . . enters or remains

unlawfully in a building other than a vehicle or a dwelling.” RCW 9A.52.030(1). 1

In evaluating whether criminal trespass is a lesser included offense of burglary, it

must not be possible to commit burglary without also committing criminal trespass.

Burglary requires proof that an individual entered or remained unlawfully in a building

with intent to commit a crime against a person or property. When an individual enters

into a building with intent to commit a crime against a person or property, or develops

that intent while inside the building, they are in the building unlawfully. Although that

individual’s presence may have been lawful absent the intent to commit a crime, it is the

intent to commit a crime that renders the entering or remaining unlawful. Thus, an

individual who enters or remains in a building with intent to commit a crime necessarily

has the intent to enter or remain unlawfully. This means a person may enter a building

lawfully, but remaining in the building may become unlawful either because that person

develops an intent to commit a crime or, in the case of trespass, for some other reason,

such as being asked to leave by a rightful owner.

Under the hierarchy of mental states, “[w]hen acting knowingly suffices to

establish an element, such element also is established if a person acts intentionally.”

RCW 9A.08.010(2); see State v. Shipp, 93 Wn.2d 510, 518, 610 P.2d 1322 (1980); State

v. Thomas, 98 Wn. App. 422, 425, 989 P.2d 612 (1999). Thus, proof that an individual

1 This is the standard for second degree burglary. First degree burglary has the same standard, but it also requires the additional element that the person is either armed with a deadly weapon or assaults any person. RCW 9A.52.020(1). 2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 99147-2 Madsen, J., concurring

intends to enter or remain unlawfully in a building is sufficient to prove that the

individual enters or remains knowingly. Accordingly, each of the elements of criminal

trespass is a necessary element of burglary, making criminal trespass a lesser included

offense.

Washington courts have consistently recognized trespass as a lesser included

offense of burglary. See, e.g., State v. Garcia, 179 Wn.2d 828, 849, 318 P.3d 266 (2014)

(noting that a conviction for burglary required the defendant to not only trespass but also

intend to commit a crime inside the building); State v. Allen, 101 Wn.2d 355, 359, 678

P.2d 798 (1984) (stating the defendant’s state of mind is the element separating burglary

from the lesser included offense of criminal trespass); State v. Southerland, 109 Wn.2d

389, 390, 745 P.2d 33 (1987) (agreeing with the Court of Appeals’ legal analysis that first

degree criminal trespass is a lesser included offense of first degree burglary); State v.

Olson, 182 Wn. App. 362, 375, 329 P.3d 121 (2014) (“Criminal trespass in the first

degree is a lesser included offense of burglary in the second degree.”); State v. Allen, 127

Wn. App. 945, 951, 113 P.3d 523 (2005) (stating that there is no question that each

element of first degree criminal trespass is a necessary element of burglary); State v. J.P.,

130 Wn. App. 887, 895, 125 P.3d 215 (2005) (“Criminal trespass is a lesser included

offense of burglary”); State v. Soto, 45 Wn. App. 839, 841, 727 P.2d 999 (1986) (noting

that “proof of second degree burglary is necessarily proof of first degree criminal

trespass” because burglary has a higher mental state requirement); State v. Mounsey, 31

3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 99147-2 Madsen, J., concurring

Wn. App. 511, 517-18, 643 P.2d 892 (1982) (holding that first degree criminal trespass is

a lesser included offense of first degree burglary).

This court applied similar logic when analyzing whether second degree criminal

trespass is a lesser included offense of second degree vehicle prowling. State v. Joseph,

189 Wn.2d 645, 405 P.3d 993 (2017). In Joseph, we concluded that second degree

trespass is a lesser included offense of second degree vehicle prowling. Id. at 653. The

elements for second degree vehicle prowling parallel the elements of second degree

burglary. RCW 9A.52.100(1) (“A person is guilty of vehicle prowling in the second

degree if, with intent to commit a crime against a person or property therein, he or she

enters or remains unlawfully in a vehicle other than a motor home.”). The only

difference is that the individual enter or remain unlawfully, with intent to commit a

crime, in a vehicle rather than a building. The court held that second degree criminal

trespass may occur when an individual knowingly enters or remains unlawfully in a

vehicle. Joseph, 189 Wn.2d at 653. The only difference between the statutes applied in

Joseph and the present case is the location where the unlawful entering or remaining took

place. Thus, by concluding that second degree trespass is a lesser included offense of

second degree vehicle prowling, the court affirmed that intent to commit a crime in a

location (vehicle or dwelling) is sufficient to meet the knowledge requirement in the

criminal trespass statute.

In this case, Moreno argued that the charging documents and jury instructions

were constitutionally deficient because they omitted an implied essential element of

4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 99147-2 Madsen, J., concurring

knowledge of the unlawfulness of entering or remaining for first degree burglary. I agree

with the majority that knowledge is not an implied essential element of burglary.

Additionally, for the reasons discussed, I would hold that the element of knowledge of

unlawfulness is satisfied if the State can prove that the defendant entered or remained

unlawfully with intent to commit a crime. Accordingly, I would reaffirm that criminal

trespass is a lesser included offense of burglary.

With these observations, I concur.

___________________________________

5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. State v. Moreno (Francisco Ruben), No. 99147-2 (Gordon McCloud, J., concurring)

GORDON McCLOUD, J. (concurring)—I concur with the bulk of the

majority’s opinion and with its conclusion. I disagree, however, with its reliance

on the decision in State v. Montague, 10 Wn. App. 911, 521 P.2d 64 (1974), to

reach its conclusion. Majority at 11-12. The Montague court approved of an

instruction telling the jury that if it believed the defendant entered unlawfully, then

it “shall”—a mandatory command—presume that the defendant had the intent to

commit a crime within— “unless such . . . unlawful entry shall be explained by

testimony satisfactory to the jury . . . .” 10 Wn. App. at 915 (emphasis

omitted). The Montague court’s analysis has certainly been superseded by the

United States Supreme Court’s decision on the same issue (of presumptions as

mandatory as the one in Montague) five years later in Sandstrom v. Montana, 442

U.S. 510, 514-19, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979).