Opinion
No. 39599-1-II.
January 11, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Jefferson County, No. 09-1-00073-1, Craddock D. Verser, J., entered July 1, 2009.
Affirmed by unpublished opinion per Hunt, J., concurred in by Quinn-Brintnall and Van Deren, JJ.
Steven Wayne Gray appeals his jury trial convictions for residential burglary and third degree theft and his sentence for residential burglary. He argues that (1) the information was deficient in alleging that Gray burglarized a dwelling without specifying that the dwelling was not a vehicle; and (2) defense counsel rendered ineffective assistance in failing to request instructions on voluntary intoxication and on the inferior degree offense of second degree burglary and in failing to argue that some prior offenses constituted the "same criminal conduct" for offender score purposes. We affirm.
FACTS I. Burglary and Theft
Around April 18, 2009, Steven Wayne Gray broke into Lawrence Norman Schinke's home at 801 Linger Longer Road, in Quilcene, where the Schinke family had vacationed for more than 20 years. Gray apparently gained entrance by cutting a triangular hole in screen door and then breaking some of the back door's glass panes and wooden framework. He apparently drank some alcohol, attempted to do some laundry and to prepare some food, and slept on the couch. He also took bottles of alcohol and a blue "windbreaker type" jacket bearing a Vance Corporation logo, all of which he carried away in a stolen pillowcase. Report of Proceedings (RP) (June 22, 2009) at 57.
Although the Schinkes' primary residence was in Renton, Schinke and his wife spent approximately 40 percent of their time at the Quilcene home, staying there three to four times a month for two to three days at a time. Their children and their children's families also stayed at the Quilcene home.
On April 18, paramedics responded to a report of an unconscious male on the beach about 300 yards from the Schinkes' home and requested law enforcement assistance. When Jefferson County Sheriff's Sergeant Benjamin V. Stamper arrived, the paramedics were assisting Gray, whom Stamper recognized from previous contacts. Gray was then conscious, wearing a blue "windbreaker type" jacket with a Vance Corporation logo, RP (June 22, 2009) at 57, and sitting on a log on ground "littered with mostly alcohol beverage containers, some empty, some still full;" some clothing, including a down jacket; some towels; and a checkered pillowcase. RP (June 22, 2009) at 35.
Stamper gathered the items on the beach, found a single cotton glove near where Gray had been sitting, and noticed Larry Schinke's name on an empty Covey Run wine bottle. On learning that Larry Schinke lived at 801 Linger Longer Road, about 300 yards from the beach where Gray had been found, Stamper drove to the residence and observed evidence of the break in. Although there were no fingerprints on the broken glass "stacked neatly on the porch," RP (June 22, 2009) at 47, marks on the glass indicated that someone wearing gloves had handled it.
When Stamper entered the residence to ensure that there were no injured people inside, he found evidence that someone had removed the two-by-four board from the steel brackets that held it across the upper part of the back door, entered the home, cut the phone lines leading to the telephone answering machine, attempted to cook some eggs in the kitchen, opened the liquor cabinet, and opened some second floor closets. On a bunk bed, Stamper noticed that a pillowcase was missing from the lower bunk; he also noticed that the remaining pillowcase was similar to the one he had found near Gray on the beach. Stamper telephoned Schinke and told him that someone had broken into his house.
The cut phone lines kept the alarm system from activating.
Continuing to investigate the burglary, Stamper met Schinke at the house about a week later. Schinke told Stamper that the Schinkes had spent Friday, April 10, through Monday, April 13, at the house, and that before leaving on April 13, they had (1) cleaned up the house; (2) turned off the circuit breakers to the stove, the washer, and the dryer; (3) "armed" the security system and left the security system instruction manual on a nearby table; and (4) locked the front door with a "double lock" and barricaded the other two doors with two-by-four boards. RP (June 22, 2009) at 83, 84. Schinke also told Stamper that it looked like someone in filthy clothing had slept on the couch and had tried to wash his clothes in the utility room while they were gone; Schinke found Gray's identification card in the utility room floor near the washing machine. They also found powdered soap scattered throughout the house, a butcher knife under the liquor cabinet, and a bottle of gin from the liquor cabinet in the rockery outside the house.
Schinke neither knew Gray nor had given him permission to enter the residence. Schinke identified as belonging to his family the items that Stamper had found on the beach near Gray, including the Covey Run wine bottle, some tequila, some red wine, the Vance Corporation jacket, a down jacket, the pillow case, and several other items.
II. Procedure
The State charged Gray with residential burglary and third degree theft. The residential burglary portion of the information alleged:
On or about the 18th day of April, 2009, in the County of Jefferson, State of Washington, the above-named Defendant with intent to commit a crime against a person or property therein, entered or remained unlawfully in the dwelling of Larry Schinke, located at 801 Linger Longer Road, Quilcene; contrary to Revised Code of Washington 9A.52.025(1), a class B felony.
Clerk's Papers (CP) at 2.
Stamper and Schinke, the State's only witnesses, testified as set out above. Gray called no witnesses. Defense counsel did not (1) propose an inferior degree instruction on second degree burglary, (2) propose a voluntary intoxication instruction, or (3) challenge the sufficiency of the charging information.
In closing argument, defense counsel focused on whether the State had proven the intent element, suggesting that because Gray was drunk when the paramedics found him, he had been unable to form the requisite intents for residential burglary and third degree theft. The State responded by arguing that Gray's attempts to disarm the alarm system, to cook himself a meal, and to do his laundry demonstrated that when he entered the home he had been sober enough to form the requisite intents. The jury found Gray guilty of residential burglary and third degree theft.
At sentencing, Gray stipulated to five prior convictions including a residential burglary and a second degree malicious mischief committed in Jefferson County on July 4, 2006, and two residential burglaries committed in Jefferson County on June 30, 2006. The parties agreed that Gray's criminal history established a nine-point offender score for his current residential burglary conviction. Based on his nine-point offender score, Gray's standard sentencing range for the residential burglary was 63 to 84 months. The trial court sentenced him to concurrent sentences of 84 months of confinement for the residential burglary and 12 months for the third degree theft.
The stipulation also included a fourth residential burglary committed in Jefferson County on March 26, 2006, which is not at issue on appeal.
Defense counsel did not assert that any of the earlier convictions were the "same criminal conduct" under RCW 9.94A.589(1)(a).
Gray appeals his convictions and his residential burglary sentence.
ANALYSIS I. Sufficiency of Information
Gray first argues that the charging information was insufficient because it alleged that he had burglarized a dwelling and did not specify that the dwelling was not a vehicle, which, he asserts, RCW 9A.52.025(1) requires. This argument fails.
Gray may challenge a defective charging document for the first time on appeal. State v. Kjorsvik, 117 Wn.2d 93, 102, 812 P.2d 86 (1991). But because he failed to mount such challenge before or during trial, we construe the charging document liberally in favor of validity, using a two-pronged test: (1) Do the necessary facts appear in any form, or by fair construction can they be found, in the charging document; and, if so, (2) can Gray show that he was nonetheless actually prejudiced by the inartful language? Kjorsvik, 117 Wn.2d at 105-06. We answer "yes" to the first prong of the test and "no" to the second.
A. First Prong
RCW 9A.52.025(1) provides:
A person is guilty of residential burglary if, with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle.
(Emphasis added).
The information alleged that Gray "entered or remained unlawfully in the dwelling of Larry Schinke, located at 801 Linger Longer Road, Quilcene;" it did not, however, specifically allege that the "dwelling" was not a vehicle. CP at 2. First, Gray does not persuade us that "a dwelling other than a vehicle" is a statutory element of residential burglary that the State must prove beyond a reasonable doubt. Second, even assuming, without deciding, that the "other than a vehicle" phrase is an element of residential burglary, a fair reading of the information, which includes the dwelling's street address, clearly implies that the dwelling Gray entered was not a vehicle.
B. Second Prong
First, Gray does not persuade us that the information contains "inartful language." Kjorsvik, 117 Wn.2d at 106. Second, even if we were to construe the information's lack of the phrase "other than a vehicle" as "inartful," nothing in the record suggests that Gray was ever confused about whether the Schinkes' dwelling, which the State alleged he had burglarized, was a residential building or a vehicle. Thus, Gray does not show that he suffered any prejudice from this alleged omission. Having failed to meet either prong of the Kjorsvik test, Gray's challenge to the sufficiency of the information also fails.
II. Effective Assistance of Counsel
Gray next argues that his trial counsel rendered ineffective assistance in failing (1) to seek a jury instruction on the inferior degree offense of second degree burglary, (2) to propose a voluntary intoxication instruction, and (3) to argue that several of Gray's prior offenses constituted the "same criminal conduct" for offender score purposes. This argument also fails.
Second degree burglary is an inferior degree of residential burglary. State v. McDonald, 123 Wn. App. 85, 90, 96 P.3d 468 (2004).
To establish ineffective assistance of counsel, Gray must show both deficient performance and resulting prejudice. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987) (adopting the test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). Prejudice occurs when, but for counsel's deficient performance, there is a reasonable probability that the outcome would have differed. Stenson, 132 Wn.2d at 705-06. Gray fails to make this showing here.
A. Inferior Degree Offense Instruction
Relying on State v. McDonald, 123 Wn. App. 85, 96 P.3d 468 (2004), Gray argues that he was entitled to a second degree burglary instruction because the jury could have found that the building he entered was not a "dwelling" at the time of the burglary. Br. of Appellant at 9. We disagree.
An instruction on any issue or theory that is unsupported by the evidence is improper. State v. Aleshire, 89 Wn.2d 67, 71, 568 P.2d 799 (1977); State v. Upton, 16 Wn. App. 195, 204, 556 P.2d 239 (1976). And an inferior degree instruction is appropriate only when there is evidence that the defendant committed only the lesser offense. State v. Winings, 126 Wn. App. 75, 86-87, 107 P.3d 141 (2005) (citing State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000)).
To establish residential burglary, the State had to prove that Gray (1) entered or remained unlawfully, (2) in a dwelling other than a vehicle, (3) with intent to commit a crime against a person or property therein. RCW 9A.52.025(1). To establish second degree burglary, the State would have had to prove that Gray (1) entered or remained unlawfully, (2) in a building other than a vehicle or a dwelling, (3) with intent to commit a crime against a person or property therein. RCW 9A.52.030(1). Thus, to be entitled to a second degree burglary instruction, the evidence would have had to support an inference that the residence at 801 Linger Longer Road was not a dwelling. The evidence did not support this inference.
RCW 9A.04.110(7) defines a "dwelling" as "any building or structure, though moveable or temporary, or a portion thereof, which is used or ordinarily used by a person for lodging." In McDonald, we held that whether a house that had been vacant for five to six months while the owners were remodeling it was a "dwelling" for purpose of residential burglary was a jury question. 123 Wn. App. at 88, 90. Gray argues that there is a similar jury question here because the evidence established that the residence was not the Schinkes' primary residence and that they used the residence only periodically. Br. of Appellant at 9-10. But (1) the house in McDonald had been vacant for five to six months before the burglary, (2) the owners had been residing in a different town while they worked on the structure during evenings and weekends, (3) "[t]he house was essentially under construction," and (4) there was evidence that at the time of the burglary there were no beds in the house. McDonald, 123 Wn. App. at 87, 90.
Here, in contrast, although the Schinkes did not inhabit the Quilcene residence daily, there was undisputed evidence that they used the residence for lodging on a regular and frequent basis. Given these facts, reasonable minds could not differ as to whether the residence was a "dwelling" under RCW 9A.04.110(7). Thus, Gray would not have been entitled to the inferior degree instruction even if defense counsel had requested it. Accordingly, Gray does not establish ineffective assistance of counsel on this ground.
B. Voluntary Intoxication Instruction
To establish ineffective assistance of counsel for failing to request a voluntary intoxication instruction, Gray must show that the trial court would have given a voluntary intoxication instruction had defense counsel requested it. He does not make this showing.
"A criminal defendant is entitled to a voluntary intoxication instruction if: (1) one of the elements of the crime charged is a particular mental state; (2) there is substantial evidence [that the defendant] ingest[ed] an intoxicant; and (3) the defendant presents evidence that this activity affected his ability to acquire the required mental state." State v. Harris, 122 Wn. App. 547, 552, 90 P.3d 1133 (2004) (citing State v. Everybodytalksabout, 145 Wn.2d 456, 460, 479, 39 P.3d 294 (2002)). The evidence must have reasonably and logically connected Gray's apparent intoxication with his asserted inability to form the requisite level of culpability to commit the residential burglary and the third degree theft. See State v. Griffin, 100 Wn.2d 417, 418-19, 670 P.2d 265 (1983); State v. Kruger, 116 Wn. App. 685, 691-92, 67 P.3d 1147 (2003).
No one testified that Gray was actually drunk when he was found on the beach. RP (June 22, 2009) at 37.
Contrary to Gray's assertion, the record does not contain evidence that his level of apparent intoxication affected his ability to form the mental state required to establish that he (1) entered the dwelling "with intent to commit a crime against a person or property therein," RCW 9A.52.025(1); or (2) "wrongfully obtain[ed] or exert[ed] unauthorized control over the property . . . of another . . . with intent to deprive [that person] of such property". RCW 9A.56.020(1)(a); RCW 9A.56.050(1). There was no evidence that Gray was intoxicated when he entered the residence or when he took items from the home. At best, the evidence shows that Gray appeared intoxicated after he entered the Schinkes' residence and gained access to the alcohol inside. Thus, the record lacks evidence that would have justified the trial court's giving a voluntary intoxication instruction even if defense counsel had so requested.
Accordingly, Gray does not show deficient performance. Therefore, we need not address the second prong of the test in holding that Gray fails to show ineffective assistance of counsel on this ground.
C. "Same Criminal Conduct"
Finally, Gray argues that his trial counsel rendered ineffective assistance in stipulating to his (Gray's) offender score. Gray contends that instead, defense counsel should have argued that the July 4, 2006 residential burglary and malicious mischief convictions constituted the "same criminal conduct" and that the two June 30, 2006 residential burglaries also constituted the "same criminal conduct." Br. of Appellant at 15. Again, Gray's argument fails.
To establish ineffective assistance on this ground, Gray must show that the trial court would have found that each set of prior offenses constituted the "same criminal conduct" under RCW 9.94A.589(1)(a) if defense counsel had so argued. To establish the "same criminal conduct," defense counsel would have had to demonstrate that (1) each set of offenses involved the same criminal intent, (2) Gray committed each set of offenses at the same time and place, and (3) each set of offenses involved the same victim. RCW 9.94A.589(1)(a). The record shows that Gray committed each set of offenses on the same day. But nothing in the record establishes that he committed each set offenses at the same time and place or that each set of offenses involved the same victims. Because the record does not show that the trial court would have concluded that either of these sets of offenses constituted the "same criminal conduct" under RCW 9.94A.589(1)(a), Gray fails to establish ineffective assistance of counsel on this ground.
To the extent there may be facts outside the record on appeal to support Gray's "same criminal conduct" argument, the appropriate process for seeking review would be by a personal restraint petition under title 16 RAP. See State v. McFarland, 127 Wn.2d 322, 338 n. 5, 899 P.2d 1251 (1995).
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
QUINN-BRINTNALL, J. and VAN DEREN, J., concur.