Opinion
No. 58176-7-I.
October 15, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-1-11001-1, James D. Cayce, J., entered April 28, 2006.
Affirmed by unpublished per curiam opinion.
Roger Engel was convicted of second degree burglary. He claims the State violated his confrontation rights by presenting hearsay testimony about an out of court identification without an opportunity to cross-examine the declarant. Engel also contends that the State provided insufficient evidence that he entered or remained in a "building" as required for conviction on burglary in the second degree. Finally, he argues the requirement that he submit a deoxyribonucleic acid (DNA) sample for identification violates his rights under the Fourth Amendment to the federal constitution and article I, section 7 of the state constitution. We affirm.
FACTS
After experiencing several thefts, Western Asphalt Company installed a video surveillance system including hidden cameras. Once the system was installed, William Peterson, the owner, and some of his employees placed some old aluminum tire rims outside a locked shed to lure thieves toward a hidden camera. On January 13, 2005, the company comptroller, Yvonne O'Leary and Peterson reviewed the surveillance video from the previous night and saw footage of two individuals taking the tire rims. Both O'Leary and Peterson testified that the business was closed and the individuals did not have permission to be on the premises. Later in January, Western Asphalt experienced another break-in, at which point O'Leary asked a consultant to copy the video of both events to a CD-ROM and then he gave it to the police.
Detective Johnson was assigned to investigate the case. Upon watching the video, he recognized Gary Shaw as one of the intruders. He also suspected that the second intruder was Roger Engel because of Engel's height and unique moustache and because Engel was one of Shaw's known associates. Detective Johnson asked Deputy Michaels to review the video.
Deputy Michaels testified that he knows both Gary Shaw and Roger Engel and had seen them together. He stated that he had known Roger Engel for fifteen to twenty years and has had numerous interactions with him because they live in the same area. Deputy Michaels was on a first name basis with Engel and had spoken to him approximately fifty or sixty times. When he saw the video, Michaels was able to identify both Shaw and Engel as the intruders. He identified Engel based on his physical characteristics. "I could tell the way [he] walked, his size, also hair coming out." Michael noted the intruder's moustache as a specific characteristic shared with Engel. "More specifically his moustache when he turned his face at this point. I have known Roger too long, I have never known him not to have a moustache like he has on today." Michaels also identified the intruder by the "way he carried himself" meaning "[h]is walk, the bounce in his step." Finally, he noted the differences in stature between the two intruders. "[T]he size of Roger is a smaller guy in stature. This person wasn't very large compared — you can see the difference between Roger and the other person, Gary Shaw. Gary is about my height, six-foot or so. You can see the difference by size as they walk side by side." Based on these characteristics, Michaels was "[h]undred percent positive" that Engel was one of the intruders.
Gary Shaw testified that he recognized Engel and they had known each other for about a year and a half. Shaw also testified that he had confessed his involvement in the Western Asphalt burglaries to the police, and that he had "scrapped metal" from both legitimate and illegal sources. In his confession to the police, Shaw identified the other participant in the burglaries at Western Asphalt but did not name the person during his testimony.
Finally, Pete Desanto, a paralegal for the King County Prosecutor's Office, testified about a meeting with Shaw the previous day, prior to Shaw's testimony. During the meeting, Desanto showed Shaw the surveillance video. Shaw identified himself and Roger Engel as the men depicted on the video. The defense objected to the questions concerning Shaw's identification of the intruders in the video as a violation of Engel's right to confrontation. The court allowed the questioning. Shaw was never cross-examined about his identification of Engel.
Engel was convicted of second degree burglary. He appeals his conviction alleging violation of his federal and state confrontation rights and insufficiency of the evidence. He also appeals the DNA collection requirement of his sentence.
DISCUSSION
I. Confrontation
Both the United States and Washington State Constitutions guarantee a defendant's right to confront the witnesses against him. See, Crawford v. Washington, 541 U.S. 36, 42, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004); Sixth Amendment to the United States Constitution; Washington Constitution article $b/b$, section 22. The State concedes that allowing Desanto to testify about Shaw's out-of-court identification was error since Engel did not have an opportunity to cross-examine Shaw about the identification. However, the State contends this error was harmless, because of the additional identification evidence offered at trial.
Violations of the confrontation clause are subject to harmless error analysis. State v. Saunders, 132 Wn. App. 592, 604, 132 P.3d 743 (2006). "The correct inquiry is whether, assuming that the damaging potential of the testimony was fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt." Id. The reviewing court must consider the importance of the witness' testimony, whether the testimony was cumulative, existence of corroborating or contradicting testimony, the extent of cross-examination permitted and the overall strength of the prosecution's case. Id. (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986)).
Here, the prosecution presented the jury with several pieces of evidence pointing toward Engel's identity as one of the Western Asphalt intruders. Detective Johnson testified that he recognized Engel in the video. Deputy Michaels, who established his close familiarity with Engel, concluded that he was 100 percent certain that Engel was one of the men in the video. The jury watched the video surveillance and had the opportunity to compare the intruders in the video with both Engel and Shaw inside the courtroom. Finally, Engel walked across the courtroom at the State's request in order to demonstrate the distinctive walk identified by Deputy Michaels. The jury could then compare Engel's walk with that of the intruder captured on the surveillance video. The jury had substantial evidence that Engel was depicted on the video without Desanto's testimony. Any error was harmless beyond a reasonable doubt.
II. " Fenced Area"
The State has the burden of proving all elements of the charged crime beyond a reasonable doubt. Seattle v. Gellein, 112 Wn.2d 58, 62, 768 P.2d 470 (1989). Engel argues that the State failed to prove all elements of the crime of second degree burglary because the Western Asphalt yard is not a "building" for the purposes of the burglary statute. When reviewing a challenge to the sufficiency of the evidence, this court determines whether any rational trier of fact could have found all the essential elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). To perform this inquiry, we draw all reasonable inferences from the evidence in favor of the State and against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). "A challenge to the sufficiency of the evidence admits the truth of the State's evidence and all inferences that can reasonably be drawn therefrom." State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254 (1980).
Conviction for second degree burglary requires proof that the defendant entered or remained unlawfully in a building other than a vehicle or dwelling, with the intent to commit a crime against a person or property therein. RCW 9A.52.030(1). Under the burglary statute, "building" includes any "fenced area." RCW 9A.04.110(5). However, the statute does not define "fenced area." "Absent a contrary legislative intent, we give a term that is not defined by statute its ordinary meaning." State v. Wentz, 149 Wn.2d 342, 352, 68 P.3d 282 (2003). Statutory construction is a question of law subject to de novo review. Cockle v. Dep't of Labor Indus., 142 Wn.2d 801, 807, 16 P.3d 583 (2001). In interpreting statutes, we must give effect to legislative intent. Id.
Engel contends that the Western Asphalt yard was not a "fenced" area as contemplated by the burglary statute. Evidence was presented to show that the yard was partially fenced with a locked gate. "The front part across the entire front entrance and down a distance is fenced." The fence extends to the stock piles of aggregate and rocks which "varied depending on the time of year, and sometimes they would completely bury a fence." William Peterson estimated that the property was fenced "[t]o the best of our ability" with chain-link fence with barbed wire on the top. On two thirds of the property, "the terrain, probably acts as a fence more than anything." This terrain is composed of "a lot of banks, high banks, a lot of sloping banks."
Engel claims the combined chain link fence and terrain do not create a "fenced area" because the ordinary meaning of "fenced area" contemplates a property enclosed by a fence. He argues that the State failed to show that the terrain prevented unauthorized access. He also maintains that impassable terrain does not equate to a fence under a commonsense definition of the term.
We have little case law to instruct us whether the terrain and gate together form a "fenced area" under the burglary statute. In Wentz, the court considered a backyard surrounded by a six foot wooden fence with padlocked gates. Id. at 352. The court concluded that "[t]he ordinary meaning of `fenced area' clearly encompasses the backyard in this case." Id. The court determined that "the State need not show that the fence was erected mainly for the purpose of protecting property within its confines." Id. at 350. Other than disposing of the requirement to prove the protective purposes of a fence, Wentz provides little guidance on the meaning of "fenced area."
However, the Wentz concurrence provides analysis helpful to the determination of whether a property is considered "fenced." The concurrence states "not all fenced areas are, automatically, `buildings' . . . they must enclose or contain an area (or be so situated as to complete an enclosed or contained area)." Id. at 357 (Madsen, J., concurring). As an example, "a fence running only along the front of a lot separating it from the street does not create a fenced area constituting a building." Id. at 356. "The fence must serve to circumscribe an area so as to protect property or people — to close off the space from unwanted intruders." Id. at 357.
Engel argues that the fence here is similar to one that only runs along one side of the lot and does not create a building. However, he ignores that the yard is surrounded by natural barriers and a metal and barbed-wire fence. The burglary statute and case law do not establish that a "fenced area" is created solely by man-made fencing. And the statute does not require an impenetrable barrier. Here, the barbed-wire fence and terrain protects the contents of the yard and signals to would-be intruders that the area is not publicly accessible. These barriers accomplish more than mere separation from a street on one side. The combined fence and terrain isolate and protect the Western Asphalt yard.
This construction of "fenced areas" also corresponds to the public policy behind the burglary statutes. "[T]he underlying theory of the burglary statutes is the protection of persons or property and punishment for invasions that involve a risk of criminal harm or actual harm to persons or property." Id. at 357. To conclude otherwise would limit the protection provided by the burglary statutes. We conclude that combined natural barriers and man-made fencing create a "fenced area" in satisfaction of the "building" element of the second degree burglary requirements. The State produced sufficient evidence to show that the Western Asphalt yard was a "fenced area" beyond a reasonable doubt.
III. DNA Sample
Engel claims that collection of his DNA pursuant to RCW 43.43.754 violates the Fourth Amendment to the federal constitution and article I section 7 of the state constitution. However, State v. Surge recently established that the DNA collection statute "does not invade a recognized private affair under the state constitution, nor is it prohibited under the Fourth Amendment." 160 Wn.2d 65, 69, 156 P.3d 208 (2007). Engel's challenge of the statute has no merit.
We affirm.