Opinion
No. 58769-2-I.
September 17, 2007.
Appeal from a judgment of the Superior Court for King County, No. 02-1-08459-8, Gregory P. Canova, J., entered August 23, 2006.
Affirmed by unpublished per curiam opinion.
A jury convicted George Lafayette of one count of burglary in the second degree. Lafayette now seeks a new trial because the trial court refused to instruct the jury on the lesser included offense of criminal trespass. Because the evidence did not support such an instruction, we affirm.
FACTS
This case concerns an alleged burglary of a Seattle fitness club. William Berni, a club member, saw Lafayette entering the club through a back door. That door led to a class workout room, but no classes were being held at the time. The door was otherwise accessible only by scaling either a five-or a six-foot fence. Berni found Lafayette's use of this door highly unusual, and he became even more suspicious when Lafayette picked up a container of cleaning soap, read its label, and walked off to the men's locker room because Lafayette was not dressed for exercising or cleaning.
A personal trainer working at the club, Michael Morgan, spotted Lafayette walking across the gym into the locker room. Morgan, familiar with all of the members, did not recognize Lafayette and went to the front desk to confirm that Lafayette had checked in. After determining that no one matching Lafayette's description had entered through the public front door, Morgan went to the locker room to question Lafayette. When he got to the locker room, Morgan observed Lafayette closing a locker door. In response to Morgan's questions, Lafayette gave his name as "Mike Stevens," claimed first that he was a member of the club, then claimed that he was only a guest (temporary member), and stated that he was in the locker room to clean up a spill. Morgan did not notice a spill, and he asked Lafayette to follow him to the front desk to confirm his membership. On the way to the front, Lafayette fled the club, using the same unmarked back door, and scaled a fence.
Morgan ran out the front door and spotted Lafayette in the neighboring parking lot, attempting to get into his car. He had set off his car alarm in his haste. Lafayette, once in the car and backing out of the lot, stopped to talk with Morgan, who had been waving and yelling at him. Morgan reiterated that he wanted to make sure the club was safe, and at that point, Berni burst out of the club and ran towards the car, shouting that his wallet had been stolen.
Berni had also gone to the locker room after observing Morgan follow Lafayette there. Morgan and Lafayette had already left, but Berni noticed that his combination lock had been cut off of his locker. He checked his pants for his wallet, and unable to find it in his usual pocket, he ran outside to pursue Lafayette and Morgan. Lafayette sped off. Berni, holding onto the car, broke off the car's side mirror. He later found his wallet in his locker, and nothing was missing.
The police tracked down Lafayette using the license plate of the vehicle, and both Morgan and Berni picked Lafayette out of a photomontage. Lafayette was charged with one count of second degree burglary. He pleaded not guilty. Morgan and Berni testified, as well as the club's manager, who testified that Lafayette was not, and never had been, either a guest, member, or an employee of the club. Lafayette did not testify.
The trial court refused Lafayette's proposed instruction on criminal trespass, and a jury found him guilty of burglary in the second degree.
ANALYSIS
Lafayette argues that the evidence adduced at trial supported a jury instruction on criminal trespass. A defendant must be granted a jury instruction for a lesser included offense if (1) all the elements of the lesser offense are necessarily included in the elements of the charged offense and (2) the evidence supports an inference that the lesser crime was committed. State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978).
The first prong of the Workman test is easily satisfied in this case. Lafayette was charged with burglary in the second degree, a crime defined as entering or remaining unlawfully in a building with intent to commit a crime against a person or property therein. RCW 9A.52.030(1). A second degree burglary charge necessarily includes the elements of criminal trespass, which requires that a person knowingly enter or remain unlawfully in a building. RCW 9A.52.070(1); State v. Soto, 45 Wn. App. 839, 727 P.2d 999 (1986) (holding that burglary in the second degree includes first degree criminal trespass).
The second prong of the Workman test is at issue in this case. This factual inquiry is satisfied "when substantial evidence in the record supports a rational inference that the defendant committed only the lesser included or inferior degree offense to the exclusion of the greater offense." State v. Fernandez-Medina, 141 Wn.2d 448, 461, 6 P.3d 1150 (2000). We view the supporting evidence in the light most favorable to the party who requested the instruction at trial. Fernandez-Medina, 141 Wn.2d at 455-56. In this case, Lafayette requested the instruction, and we review the evidence to see if it supports the inference that he committed only criminal trespass and not second degree burglary.
Both the State and Lafayette discuss the following pieces of evidence offered at trial. Each concerns Lafayette's actions at the club: (1) his entry and exit using an unmarked door accessible only by climbing a fence; (2) his style of dress; (3) the use of a gallon jug of cleaning liquid as a prop; (4) lack of membership or employment at the club, and his prevarications about his name and status in the club; (5) fleeing the scene; and (6) his closing a door to a locker. Additionally, Berni testified that his combination lock had been cut off his locker after he had gone to work out that evening.
Lafayette contends that the first five pieces of evidence could lead a jury to believe that he was only trespassing and trying to avoid capture and the last two pieces of evidence allow, at most, an inference that he intended to commit a crime within the club. According to Lafayette, the jury could have believed all of the evidence and found him guilty of criminal trespass instead of burglary in the second degree. We disagree. It is not enough to argue that the jury could have found him guilty of criminal trespass. Rather, the evidence must affirmatively establish that the defendant is guilty of only the lesser included offense, to the exclusion of the greater offense. Fernandez-Medina, 141 Wn.2d at 455-56.
The evidence viewed in its totality precludes the conclusion that Lafayette did not intend to commit a crime. Some of the evidence viewed in isolation may only establish criminal trespass and a desire to escape capture, but together, especially when viewed in light of his behavior in the locker room, the evidence does not permit a finding that only criminal trespass occurred.
First, Lafayette scaled a fence to avoid the front desk but still gain access to the inside of the club. He then chose a gallon jug that contained cleaning fluid so he would seem to be in the club legitimately. Lafayette chose to go to the locker room, the one place besides the front desk where valuables could be found. He was seen closing a locker. Even without reaching the logical conclusion that Lafayette also opened this locker, the fact that he chose to touch and disturb a person's locker — an item designed to safeguard possessions while the owner is away — demonstrates criminal intent. Only a short while later, Berni discovered his lock had been cut off his locker and the contents disturbed.
Lafayette also tried to legitimize his presence and actions in the locker room by telling Morgan that he was cleaning up a spill. But there was no evidence of a spill anywhere in the vicinity and no signs that Lafayette had taken any steps beyond carrying a large container of soap to corroborate his account. He also gave Morgan a false name and claimed to be a member at the club, changing his story as he continued to talk with Morgan. Finally, Lafayette ostensibly agreed to follow Morgan to the front desk, but instead ran out the back door and scaled the fence again. He set off his own car alarm in his haste and agitation. When Berni confronted him about his missing wallet, he sped away.
Lafayette cannot point to substantial evidence in the record indicating that he committed trespass but did not intend to commit a crime. His only offered explanation of his presence at the club is not credible, as he was neither a member nor trying to clean the locker room. He does point out that the State failed to present certain incriminating evidence. No one saw Lafayette put his hand into a locker or take anything from it. The State, however, did not have to prove that a theft occurred, but only that Lafayette had the intent to do so. The fact that Lafayette was seen closing a locker door amply supports the conclusion that Lafayette possessed criminal intent.
Similarly, no one saw him carrying bolt cutters or similar tools, and according to Morgan's timeline, Lafayette would have had approximately 90 seconds to cut off the lock. Lafayette claims this is an insufficient amount of time to cut off a lock and hide the tools, but he offers no evidence to support this argument. Finally, Lafayette argues that his willingness to stop his escape and talk to Morgan evinces lesser criminal conduct, and his subsequent flight was justified in the face of Berni's threatening actions. These alternative explanations of the evidence, however, do not add up to substantial evidence supporting a rational inference that Lafayette intended only to trespass.
Lafayette cites Fernandez-Medina in support of his position, but that case is factually distinguishable. In that case, the defendant fired several shots into an apartment and pointed his gun at one victim's head. Fernandez-Medina, 141 Wn.2d at 451. Witnesses then heard a click, but no bullet discharged, and the defendant was charged with attempted murder or, in the alternative, assault in the first degree. Fernandez-Medina, 141 Wn.2d at 451. After evidence at trial showed that a gun can make various sounds without pulling the trigger, FernandezMedina requested a jury instruction for a lesser assault charge that did not include intent to do serious bodily harm. Fernandez-Medina, 141 Wn.2d at 452. The Supreme Court held that the defendant was entitled to the instruction because the testimony given by gun experts supported an inference that the defendant had not pulled the trigger. Fernandez-Medina, 141 Wn.2d at 450. In contrast, here there is no such affirmative evidence that allows the jury to infer that Lafayette intended only to trespass.
We conclude the trial court properly refused to give his requested instructions and affirm the conviction.