Opinion
No. 54649-0-I
Filed: August 1, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No: 04-1-00836-5. Judgment or order under review. Date filed: 06/28/2004. Judge signing: Hon. Richard J. Thorpe.
Counsel for Appellant/Cross-Respondent, Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent/Cross-Appellant, Constance Mary Crawley, Prosecutors Office, Snohomish Co Courthouse, 3000 Rockefeller Ave, Everett, WA 98201-4060.
James Carlile contends his jury conviction for residential burglary should be reversed because the jury was not told it had to unanimously agree on whether he entered the victim's residence unlawfully or remained within the residence unlawfully. We disagree and affirm.
Neighbors noticed the burglary while it was in progress and identified Carlile, whom they knew, as the fleeing burglar. Items taken from the home were found in a truck Carlile was using and in his home. The evidence that Carlile entered the home and took items was overwhelming.
The jury was instructed that to find Carlile guilty, it had to find that he `entered or remained unlawfully' in the dwelling. Carlile did not object to this instruction or propose any alternative instructions. The jury was not instructed that it had to agree on whether Carlile entered unlawfully or remained unlawfully.
CP 44.
Relying on State. v. Klimes, Carlile contends that entering unlawfully and remaining unlawfully are alternative means of committing residential burglary. He argues that a lawful entry is a pre-requisite to unlawfully remaining and that, because his entry was clearly unlawful, he could not have remained unlawfully in the dwelling. He reasons his conviction should be reversed because (1) the jury was not told it had to agree by which alternative means the crime was committed, (2) the prosecutor did not elect which means, (3) the jury returned a general verdict, and (4) there was no evidence of unlawfully remaining, one of the alternative means.
117 Wn. App. 758, 73 P.3d 416 (2003).
We have recently considered and rejected similar arguments in State v. Allen, State v. Howard and State v. Spencer. The flaw in Carlile's reasoning is his assertion that there must be a lawful entry before he could unlawfully remain.
___ Wn. App. ___, 110 P.3d 849 (2005).
___ Wn. App. ___, ___ P.3d ___ (2005) (No. 52595-6, slip op. filed June 6, 2005).
___ Wn. App. ___, ___ P.3d ___ (2005) (No. 52817-3, slip op. filed June 20, 2005).
Carlile is guilty of residential burglary if, with intent to commit a crime against a person or property therein, he entered or remained unlawfully in a dwelling. "A person `enters or remains unlawfully' when he is not then licensed, invited, or otherwise privileged to so enter or remain." Unlawful remaining, "occurs when (1) a person has lawfully entered a building pursuant to invitation, license or privilege; (2) the invitation, license or privilege is expressly or impliedly limited; (3) the person's conduct violates such limits; and (4) the person's conduct is accompanied by intent to commit a crime in the building." But as we explained in Allen, Howard and Spencer, even though a burglar may be convicted under the unlawfully remaining prong if he enters a dwelling lawfully, the fact that the burglar enters unlawfully does not preclude a finding that he also remained unlawfully in the dwelling. Under the circumstances of this case, no reasonable jury could believe that Carlile was lawfully within the residence. His unlawful entry and subsequent takings established conclusively that he remained unlawfully in the dwelling. Jury unanimity requirements are satisfied if each of the means is supported by substantial evidence and the means are not repugnant to each other. Because there was substantial evidence that Carlile both entered and remained unlawfully in the victims' dwelling, there was no need for a unanimity instruction.
State v. Thomson, 71 Wn. App. 634, 640-41, 861 P.2d 492 (1993); State v. Rio, 38 Wn.2d 446, 230 P.2d 308 (1951).
State v. Klimes, 117 Wn. App. at 770.
Affirmed.
COLEMAN, APPELWICK and BAKER, JJ.