Summary
upholding the trial court's refusal to give a lesser offense instruction because there was no affirmative evidence in the record that would support an inference that defendant committed only the lesser offense of second degree burglary
Summary of this case from State v. BrewerOpinion
No. 56882-1.
October 11, 1990.
[1] Criminal Law — Lesser Included Offense — Instruction — Necessity — In General. A criminal defendant is not entitled to a lesser included offense instruction unless each element of the lesser offense is a necessary element of the offense charged and the evidence in the case supports an inference that the lesser offense was in fact committed.
[2] Criminal Law — Lesser Included Offense — Instruction — Necessity — Evidence in Support. No lesser included offense instruction need be given unless some evidence is presented that affirmatively establishes the defendant's theory on the lesser offense.
Nature of Action: Prosecution for forgery and first and second degree burglary.
Superior Court: The Superior Court for Snohomish County, No. 88-1-00331-3, Robert C. Bibb, J., on July 15, 1988, entered a judgment on a verdict of guilty of all the crimes charged. The verdict included a special finding that the defendant was armed with a deadly weapon during the commission of the first degree burglary. The defendant appealed only the first degree burglary conviction and deadly weapon special verdict.
Court of Appeals: The court at 56 Wn. App. 412 affirmed the conviction for first degree burglary while armed with a deadly weapon, holding that the evidence was sufficient to support the deadly weapon special verdict and that the defendant was not entitled to a lesser included offense instruction.
Supreme Court: Holding that the defendant was not entitled to a lesser included offense instruction on second degree burglary, the court affirms the decision of the Court of Appeals and the conviction for first degree burglary while armed with a deadly weapon.
Scott G. Busby of Washington Appellate Defender Association, for petitioner.
Seth R. Dawson, Prosecuting Attorney, and Kevin M. Korsmo, Deputy, for respondent.
Jeffrey L. Speece was convicted by jury of first degree burglary, second degree burglary, and six counts of forgery. In connection with the first degree burglary conviction, the jury also returned a special verdict that Speece was armed with a deadly weapon. Speece appealed only the first degree burglary conviction, claiming that there was insufficient evidence to support a finding that he was armed for purposes of the conviction or the deadly weapon special verdict. He also assigned error to the trial court's refusal to give a lesser included offense instruction for second degree burglary. The Court of Appeals affirmed the conviction. State v. Speece, 56 Wn. App. 412, 783 P.2d 1108 (1989). This court accepted review. We affirm.
RCW 9.94A.125 provides, in part: "In a criminal case wherein there has been a special allegation and evidence establishing that the accused or an accomplice was armed with a deadly weapon at the time of the commission of the crime, . . . the jury shall, if it find[s] the defendant guilty, also find a special verdict as to whether or not the defendant or an accomplice was armed with a deadly weapon at the time of the commission of the crime."
RCW 9A.52.020(1)(a) provides: "A person is guilty of burglary in the first degree if, with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a dwelling and if, in entering or while in the dwelling or in immediate flight therefrom, the actor or another participant in the crime (a) is armed with a deadly weapon[.]"
RCW 9A.52.030(1) provides: "A person is guilty of burglary in the second degree if, with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a building other than a vehicle or a dwelling."
The facts of the present case are set forth in the Court of Appeals opinion. The court relied on the reasoning of State v. Hall, 46 Wn. App. 689, 695, 732 P.2d 524, review denied, 108 Wn.2d 1004 (1987) and State v. Faille, 53 Wn. App. 111, 114-15, 766 P.2d 478 (1988) to conclude that the evidence in the present case is sufficient to support a finding that Speece was armed. Speece, 56 Wn. App. at 418. We adopt the Court of Appeals analysis and conclusion on this issue.
[1] Speece assigned error to the trial court's refusal to give an instruction on the lesser included offense of second degree burglary. A defendant is entitled to an instruction on a lesser included offense if (1) each element of the lesser offense is a necessary element of the offense charged, and (2) the evidence in the case supports an inference that the lesser crime was committed. State v. Fowler, 114 Wn.2d 59, 66-67, 785 P.2d 808 (1990) (citing State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978)). The State concedes that the first prong of this test is satisfied. The issue is if there is sufficient evidence to support an inference that the lesser included crime was committed.
[2] At the time Speece's case was tried and on appeal, there was a conflict between two divisions of the Court of Appeals as to whether or not affirmative evidence supporting the defendant's theory is required before a lesser included offense instruction will be given. Subsequently, Fowler resolved this conflict stating:
In State v. Wilson, 41 Wn. App. 397, 704 P.2d 1217, review denied, 105 Wn.2d 1003 (1985), Division Three stated: "[I]t is not incumbent upon the defendant, before [a lesser included offense] instruction will be given, to show facts from which a jury might draw the conclusion that the lesser crime and not the greater was, in fact, committed". Wilson, at 399 (quoting State v. Gottstein, 111 Wn. 600, 602, 191 P. 766 (1920)). In State v. Rodriguez, 48 Wn. App. 815, 817-18, 740 P.2d 904, review denied, 109 Wn.2d 1016 (1987), Division One expressly declined to follow Wilson, stating: "[I]f the defendant would urge as an alternative theory that he committed only [the included crime], some evidence must be presented affirmatively to establish that theory." Rodriguez, at 820 (quoting State v. Wheeler, 22 Wn. App. 792, 797, 593 P.2d 550 (1979)).
It is not enough that the jury might simply disbelieve the State's evidence. Instead, some evidence must be presented which affirmatively establishes the defendant's theory on the lesser included offense before an instruction will be given.
Fowler, at 67 (citing State v. Rodriguez, 48 Wn. App. 815, 820, 740 P.2d 904, review denied, 109 Wn.2d 1016 (1987)).
Speece's defense at trial was solely that he did not commit the burglary. The State established prima facie evidence that the burglar took two guns. Speece in no way disputed this evidence. Thus, there is no affirmative evidence in the record that would support an inference that Speece was not armed during the burglary, once the jury found that he was, indeed, the burglar. Therefore, Speece was not entitled to a lesser included offense instruction on second degree burglary.
Accordingly, the jury's special verdict and Speece's first degree burglary conviction are affirmed.