Opinion
No. 53069-1-I
Filed: May 31, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 03-1-00918-7. Judgment or order under review. Date filed: 08/25/2003. Judge signing: Hon. Harry J McCarthy.
Counsel for Appellant(s), Christopher Gibson, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Cozen Robinson (Appearing Pro Se), Doc# 839274, Monroe Corr. Complex, P.O. Box 777, Monroe, WA 98272-0777.
Counsel for Respondent(s), Erin Hairopoulos Becker, King County Prosecutors Office, W554 King County Courthouse, 516 3rd Ave, Seattle, WA 98104-2390.
Cozen Robinson entered his wife Mariea's apartment in violation of a no-contact order that prohibited him from contacting her or coming within 500 feet of the apartment. Upon entering the apartment, he argued with her guest, Orustus Petty, hitting him multiple times. Robinson was charged with first degree burglary — domestic violence, domestic violence misdemeanor violation of a court order, and felony harassment. He was convicted of the first degree burglary charge and violation of a no-contact order, but was acquitted of the harassment charge. He claims that substantial evidence did not support his first degree burglary conviction and that he was denied his right to a unanimous verdict. Because substantial evidence supports both alternate means of committing first degree burglary, we affirm.
I.
Cozen Robinson and his wife Mariea separated in April 2002. That same month King County Superior Court issued a no-contact order pursuant to RCW 10.99.050, prohibiting Cozen from coming within 500 feet of Mariea's residence, school or workplace, or otherwise having contact with her. Despite the no-contact order, Robinson went to his wife's apartment in February 2003. At the time, another man, Orustus Petty, was visiting with his wife. According to Petty, Robinson forced his way into the apartment, pushing past Mariea. Robinson then confronted Petty, demanded to know why Petty was there, and struck Petty repeatedly. As Petty fled, Robinson stated, `Nigger, you better be lucky I don't cap your ass.' This alleged statement served as the basis for the charge of harassment.
In Robinson's version, he struck Petty only because Petty jumped up from the couch quickly, and Robinson did not know what Petty was going to do. Petty tried to hit Robinson, missed, and Robinson hit Petty again. Petty then ran away. Robinson denied threatening Petty.
Robinson was charged with first degree burglary — domestic violence, domestic violence misdemeanor violation of a court order, and felony harassment. During the trial, the prosecuting attorney did not elect one of the alternate means of committing burglary. A jury found Robinson guilty of the burglary and violation of a court order charges, and not guilty of the harassment charge. The jury did not indicate upon which alternate means of committing burglary it relied to find Robinson guilty.
II.
We review a challenge to the sufficiency of the evidence by viewing the evidence in a light most favorable to the State and considering whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."
State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)).
Robinson challenges the sufficiency of the evidence to convict him of first degree burglary. Although Robinson couches his argument in terms of a unanimity argument, it is in fact a challenge to the sufficiency of the evidence. As such, we take the State's evidence and all reasonable inferences therefrom as true.
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
RCW 9A.52.020(1) provides the elements of first degree burglary:
A person is guilty of burglary in the first degree if, with intent to commit a crime against a person or property therein, he or she enters or remains unlawfully in a building and if, in entering or while in the building or in immediate flight therefrom, the actor or another participant in the crime (a) is armed with a deadly weapon, or (b) assaults any person.
Robinson argues that the State only provided sufficient evidence to show that he remained unlawfully with intent to commit a crime against a person in Mariea's apartment. But taking the evidence and inferences therefrom in the light most favorable to the State, we conclude that the jury could have concluded Robinson intended to commit assault in the apartment based solely on his unlawful entry.
A jury may infer the intent to commit a crime `if the defendant's conduct and surrounding facts and circumstances plainly indicate such an intent as a matter of logical probability.' The evidence showed that Robinson barged into the apartment. Because Petty could see Robinson, it is logical to infer that Robinson could see Petty. Upon entry, Robinson very quickly confronted Petty. Robinson was immediately aggressive and quickly violent. Based on these facts, we conclude that the jury could have inferred Robinson intended to commit assault when he unlawfully entered the apartment. Therefore, we do not consider Robinson's argument that violation of a no-contact order is not a continuing crime and could not have served as the crime element for the burglary charge.
State v. Woods, 63 Wn. App. 588, 591, 821 P.2d 1235 (1991) (citing State v. Bergeron, 105 Wn.2d 1, 4, 711 P.2d 1000 (1985)).
Next, Robinson argues that because `enters unlawfully' and `remains unlawfully' are repugnant alternate means of committing burglary, he was denied his right to a unanimous jury verdict. The right to jury unanimity may include `the right to express unanimity as to the means by which the defendant committed the crime.' But `[j]ury unanimity requirements may . . . be met if each of the means is supported by substantial evidence in the record and the means are not repugnant to one another.'
State v. Klimes, 117 Wn. App. 758, 770, 73 P.2d 416 (2003).
Klimes, 117 Wn. App. at 770 (citing State v. Whitney, 108 Wn.2d 506, 508, 739 P.2d 1150 (1987)).
Robinson relied on language in State v. Klimes to argue that `enters unlawfully' with intent to commit a crime therein and `remains unlawfully' with intent to commit a crime are repugnant alternate means of committing burglary. We have since retreated from that language, holding that although `enters unlawfully' and `remains unlawfully' are alternate means, they are not necessarily repugnant alternate means.
117 Wn. App. 758, 73 P.2d 416 (2003).
Klimes, 117 Wn. App. at 760.
State v. Allen, No. 52388-1-I, 2005 WL 941207, at *3 (Wash.Ct.App. April 25, 2005).
Substantial evidence supports both that Robinson `entered unlawfully' and that he `remained unlawfully.' Because substantial evidence supports both alternate means, jury unanimity requirements are met.
AFFIRMED.
ELLINGTON and APPELWICK, JJ., Concur.