Opinion
No. 56347-5-I.
July 3, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-1-06271-0, Joan B. Allison, J. Pro Tem., entered May 16, 2005.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
David Bruce Koch, Nielson Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA 98104.
Laura E. Poellet, Ofc of King Co Pros Aty, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Affirmed by unpublished per curiam opinion.
Tyree Bellinger argues that his right to jury unanimity was violated because the State failed to prove one of the alternative means of committing burglary. But because the evidence was sufficient to support both the `unlawful entry' and `unlawful remaining' elements, no unanimity violation occurred. Accordingly, we affirm.
After stealing items from the Downtown Seattle Nordstrom store, Bellinger received a criminal trespass warning, prohibiting him from entering the Nordstrom property for two years. Approximately one month later, Bellinger again entered the Downtown Nordstrom. He then took a shirt from the rack and left the store without paying for it. Security guards stopped Bellinger, retrieved the shirt, and called the police, who arrested Bellinger.
Bellinger was charged with one count of second degree theft and one count of second degree burglary. Following trial, a jury found Bellinger guilty as charged, and he received concurrent standard-range terms.
On appeal, Bellinger challenges only the burglary conviction. He contends that he was denied his right to a unanimous verdict because the jury was instructed on both the `unlawfully enters' and `unlawfully remains' alternative means of committing burglary, but the evidence supported only the `unlawfully enters' means. See RCW 9A.52.030(1); State v. Kitchen, 110 Wn.2d 403, 410, 756 P.2d 105 (1988) (whenever a single offense may be committed in more than one way, unanimity is not required as to the means if substantial evidence supports each alternative means).
Bellinger's arguments rest solely on State v. Klimes, 117 Wn. App. 758, 73 P.3d 416 (2003), in which this court indicated that the alternative means of committing burglary are repugnant to one another and that the `remains unlawfully' means applies only if the initial entry was lawful. See Klimes, 117 Wn. App. at 765-68 (citing State v. Collins, 110 Wn.2d 253, 751 P.2d 837 (1988), and State v. Thomson, 71 Wn. App. 634, 861 P.2d 492 (1993)). But we later disapproved of this portion of the Klimes analysis and concluded that the `remains unlawfully' means of committing burglary may apply even if the initial entry is unlawful. State v. Allen, 127 Wn. App. 125, 130, 110 P.3d 849 (2005); see also State v. Howard, 127 Wn. App. 862, 873-74, 113 P.3d 511 (2005), review denied, 156 Wn.2d 1014 (2006). Consequently, the evidence that Bellinger remained on Nordstrom property after his unlawful entry was sufficient to establish unlawful remaining for purposes of burglary. See State v. Howard, 127 Wn. App. at 875. Because the evidence was sufficient to establish both unlawful entry and unlawful remaining, Bellinger's right to a unanimous jury was not violated.
Affirmed.