Opinion
No. 22413-9-III
Filed: September 2, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 02-1-03269-0. Judgment or order under review. Date filed: 09/24/2003. Judge signing: Hon. Tari S. Eitzen.
Counsel for Appellant(s), Daniel Herbert Bigelow, Attorney at Law, PO Box 153, Cathlamet, WA 98612-0153.
Counsel for Respondent(s), Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Cra Smith appeals his jury conviction for the crime of residential burglary. He contends the evidence does not support the verdict and the trial court erred when it gave a permissive inference jury instruction since the lawfulness of Mr. Smith's presence in Jessica Beckley's apartment on the date in question was disputed. Because the evidence supports the verdict and the permissive inference jury instruction was proper under the specific facts of this case, we affirm.
FACTS
Jessica Beckley and her children lived in the lower unit of a duplex located in Spokane County. Mr. Smith occupied the upper unit. The two maintained a cordial relationship but did not know each other well. In November 2002, Ms. Beckley returned to her duplex to discover it had been ransacked and several items had been taken. While she was surveying the damage she found a woman's ring that she believed belonged to Mr. Smith's friend. She decided to speak with Mr. Smith regarding the ring and to find out if he knew anything about the damage to her duplex or the missing items. While speaking to him, Ms. Beckley could see a shirt that belonged to her daughter and a bottle of dish soap from her unit outside Mr. Smith's front door. She did not question him about the shirt or the soap and Mr. Smith denied having any knowledge of the ring. He told her that he had not seen or heard anything unusual the previous night.
By coincidence, as Ms. Beckley left Mr. Smith's unit, Officer Terry Busse of the Spokane Police Department arrived on the scene on an unrelated matter. Ms. Beckley reported the break-in at her unit and told the officer she suspected that Mr. Smith was responsible. The officer questioned Mr. Smith about the break-in and missing items. Mr. Smith denied being involved and then refused to answer anymore of the officer's questions. At that point Mr. Smith was read his constitutional rights and placed in a patrol car while Officer Busse applied for, and received, a warrant to search Mr. Smith's unit for evidence of the break-in. Inside Mr. Smith's unit, police found several items that belonged to Ms. Beckley or her children. At that point, Mr. Smith was arrested. As he was being taken to the jail, Mr. Smith spontaneously stated he made a mistake when he went inside Ms. Beckley's apartment but that he had done so to check on a barking dog.
Mr. Smith was charged in the Spokane County Superior Court with residential burglary and possession of stolen property. In his first trial in March and April 2003, the jury returned a guilty verdict on the residential burglary charge but found him not guilty of the stolen property charge. He was granted a new trial after the court determined one of the State's witnesses commented on Mr. Smith's right to remain silent at the time of his arrest.
A second trial was held several months later on only the residential burglary charge. Mr. Smith's defense theory was that he believed he was authorized by the landlord to look into emergency situations at the duplex and because he saw a person leaving the area of Ms. Beckley's duplex around midnight on November 26, 2002, when Ms. Beckley was not home, he believed an emergency existed. He decided to further investigate the circumstances. When he got to the back door of Ms. Beckley's duplex, he could see it was open and items from her unit were stacked on the porch, which further aroused his suspicions. He testified he secured the items in his duplex for safekeeping and just forgot to tell Ms. Beckley about them because she woke him up. Nevertheless, the jury found Mr. Smith guilty of residential burglary.
Just prior to sentencing, defense counsel filed a motion for arrest of judgment or in the alternative a new trial. The motion was denied and Mr. Smith was sentenced within the standard range. His sentence was stayed pending the outcome of this appeal.
ANALYSIS 1. Sufficiency of the Evidence
Mr. Smith first contends the evidence was not sufficient to support the jury's guilty verdict for the crime of residential burglary. We disagree.
On review, we examine the evidence to determine whether any rational trier of fact, viewing the evidence in the light most favorable to the State, could find the elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency admits the truth of the State's evidence and all inferences that may reasonably be drawn from that evidence. Id. We defer to the fact finder to resolve conflicting testimony, evaluate the credibility of witnesses, and to generally weigh the persuasiveness of the evidence. State v. Lubers, 81 Wn. App. 614, 619, 915 P.2d 1157 (1996).
Mr. Smith argues that because he occasionally assisted his landlord with landscape or maintenance jobs he had actual or implied authority to act as the landlord's agent. As such, he claims it was permissible for him to be in Ms. Beckley's unit to investigate the alleged break-in. Mr. Smith is incorrect that his theory is the only one that necessarily follows from the evidence presented.
At trial, the landlord did not ever say, either explicitly or by implication, that Mr. Smith was his authorized agent regarding emergencies that occurred in or around Ms. Beckley's unit. In answer to defense counsel's hypothetical question regarding whether a potential burglary is the type of emergency whereby the landlord would consider giving his permission to Mr. Smith to enter the property, the landlord said `yes, absolutely.' The landlord further clarified his answer by stating that he would not recommend that Mr. Smith enter a property that was being burglarized, although he would trust Mr. Smith to do so if the circumstances demanded it. However, on cross-examination the landlord candidly admitted that he had never discussed with Mr. Smith whether or not he had the express or implied authority to enter Ms. Beckley's unit in case of emergency, nor had Mr. Smith ever called to request such permission.
Report of Proceedings at 125.
On the other hand, the State introduced evidence that items taken from Ms. Beckley's unit were found by police in Mr. Smith's upstairs unit. Mr. Smith failed to adequately explain why, when he removed the items from Ms. Beckley's unit, he neglected to report the alleged burglary to the police, or to inform Ms. Beckley that he had some of her property in his upstairs unit for safekeeping due to the break-in. Officer Busse testified that after Mr. Smith was arrested he confessed he had made a mistake when he went into Ms. Beckley's duplex on the night in question. This circumstantial evidence, viewed in the light most favorable to the State, provides ample information from which the jury could conclude that on November 26, 2002, Mr. Smith entered or remained unlawfully in Ms. Beckley's unit located in Spokane County with the intent to commit a crime against a person or property therein. The evidence supports the conviction.
The relevant section of the to convict jury instruction states:
`To convict the defendant of the crime of residential burglary, each of the following elements of the crime must be proved beyond a reasonable doubt:
`(1) That on or about the 26th day of November 2002, [in the state of Washington] the defendant entered or remained unlawfully in a dwelling[;]
`(2) That the entering or remaining was with intent to commit a crime against a person or property therein.' Clerk's Papers (CP) at 49 (emphasis added) (Jury Instruction 4).
2. Permissive Inference Instruction
Next, Mr. Smith argues the trial court violated his due process rights when it gave the jury a permissive inference instruction regarding the criminal intent element of residential burglary. Citing State v. Randhawa, 133 Wn.2d 67, 76, 941 P.2d 661 (1997), he claims the permissive inference instruction relieved the State of its burden of proving each element of the crime charged beyond a reasonable doubt.
Jury Instruction 16 states:
`A 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. This inference is not binding upon you and it is for you to determine what weight, if any, such inference is to be given.' CP at 61.
A constitutional challenge to a jury instruction is reviewed de novo. State v. DeRyke, 149 Wn.2d 906, 910, 73 P.3d 1000 (2003). The requisite intent element for residential burglary was found in jury instruction 4, i.e., the `intent to commit a crime against a person or property' inside the residence. Our legislature has determined that intent to commit a crime may be inferred when a person enters or remains unlawfully inside a residence. RCW 9A.52.040. However, when, as here, the permissive inference is merely part of the State's proof supporting the element of intent (rather than the sole and sufficient proof), due process will not be violated as long as the State can show the inference more likely than not flows from a fact that was proven at trial. State v. Deal, 128 Wn.2d 693, 699-700, 911 P.2d 996 (1996).
CP at 49.
Our duty then is to determine whether the element of intent to commit a crime inside the residence is more likely than not a reasonable conclusion that flows from the underlying foundational facts elicited at trial. State v. Farr-Lenzini, 93 Wn. App. 453, 469 n. 7, 970 P.2d 313 (1999). Similar to the assertion discussed above, Mr. Smith attempts to argue that the permissive inference of criminal intent did not necessarily flow from the facts presented at trial since the State failed to prove he entered or remained unlawfully in Ms. Beckley's unit. He is mistaken.
From the circumstantial evidence outlined above, and the jury's credibility decision regarding that information, we conclude the inference of criminal intent as set forth in jury instruction 16 more likely than not flowed from the facts presented by the State. See State v. Brunson, 128 Wn.2d 98, 105, 905 P.2d 346 (1995) (circumstances of entry may support inference of intent to commit a crime). Jury instruction 16 was properly worded and the trial court did not err when it gave the instruction to the jury at the conclusion of Mr. Smith's trial.
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KATO, C.J. and KURTZ, J., concur.