Opinion
No. 25613-8-III.
October 23, 2007.
Appeal from a judgment of the Superior Court for Benton County, No. 06-1-01053-5, Cameron Mitchell, J., entered October 26, 2006.
Affirmed by unpublished opinion per Schultheis, J., concurred in by Sweeney, C.J., and Kulik, J.
Darin Russell Stewart, Jr., appeals his Benton County conviction for residential burglary. He argues the State lacked sufficient evidence to convict him because it relied on an inference to prove his criminal intent, which Mr. Stewart claims does not flow beyond a reasonable doubt from the underlying fact. We reject his contention, and affirm.
FACTS
Just before 6 a.m. on August 21, 2006, Brandy Moreno's husband left their apartment to go to work. Ms. Moreno and the couple's two young children remained in the master bedroom. Although the apartment door closed completely, the lock did not work. Within a few minutes of her husband's departure, Ms. Moreno was awakened by the barking of the family dog. She saw a shadow on the wall by the bedroom door and got up to investigate.
As she approached the front door, she saw the door closing. She pulled the door open and saw Mr. Stewart standing in the doorway. She had previously seen him visiting a resident of the apartment complex. Mr. Stewart fled when he saw Ms. Moreno. She followed him down two flights of stairs and around the corner. He turned around, looked at her, and took off running again. She saw a black bandana in his hand as he fled. Police later found a similar bandana in Mr. Stewart's jail property after his arrest. Ms. Moreno positively identified Mr. Stewart from a photo montage.
The State charged Mr. Stewart with residential burglary, including several allegations of aggravating circumstances. At trial, Ms. Moreno testified that it was unlikely a person could just wander to her apartment because it is not easily accessible. She explained that to access the apartment, a person must go up one flight of stairs, turn right, go up another flight of stairs, make another right and go down a hallway. She was certain the front door had been closed the morning of August 21, but not locked. She was also certain that Mr. Stewart's arm was inside her apartment. Ms. Moreno testified that nothing was taken from the apartment.
At the close of Mr. Stewart's trial, the court gave 11A Washington Practice: Washington Pattern Jury Instructions: Criminal 60.05 (Supp. 2005) (WPIC), the pattern inference of intent instruction:
A person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein. This inference is not binding upon you and it is for you to determine what weight, if any, such inference is to be given.
Clerk's Papers (CP) at 37.
The jury found Mr. Stewart guilty of residential burglary with a special finding that the residence was occupied during the burglary. He appeals, challenging the sufficiency of the State's evidence.
ANALYSIS
Evidence is sufficient to support a jury verdict as long as any rational trier of fact could have found guilt beyond a reasonable doubt, viewing the evidence in the light most favorable to the prosecution. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We draw all reasonable inferences from the evidence in the prosecution's favor and interpret the evidence most strongly against the defendant. Id. We assume the truth of the prosecutor's evidence and all inferences that reasonably can be drawn from it. Id.
The essential elements of residential burglary are entering or remaining unlawfully in a dwelling plus the intent to commit a crime against a person or property therein.
RCW 9A.52.025(1). Mr. Stewart does not dispute the sufficiency of the evidence of unlawful entry, but challenges the State's proof of his intent to commit a crime. At issue is RCW 9A.52.040, which creates an inference of intent as follows:
In any prosecution for burglary, any person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein, unless such entering or remaining shall be explained by evidence satisfactory to the trier of fact to have been made without such criminal intent.
This statute is reflected in WPIC 60.05.
Mr. Stewart correctly notes that this inference is permissive. See State v. Brunson, 128 Wn.2d 98, 105, 905 P.2d 346 (1995) (holding WPIC 60.05 creates a permissive inference). A permissive inference permits the jury to infer an element of the offense from an underlying "proved" fact. State v. Jackson, 112 Wn.2d 867, 875, 774 P.2d 1211 (1989). The standard of proof for permissive inferences is "more likely than not." County Court of Ulster County v. Allen, 442 U.S. 140, 165, 167, 99 S. Ct. 2213, 60 L. Ed. 2d 777 (1979) (as long as a presumption is not the sole basis of guilt, the presumed fact must flow "more likely than not" from the proven fact); see also State v. Hanna, 123 Wn.2d 704, 710, 871 P.2d 135 (1994) (adopting the Ulster standard). However, when an inference is the "sole and sufficient basis for a finding of guilt," Ulster suggests that the reasonable doubt standard applies. Ulster, 442 U.S. at 167.
Mr. Stewart asserts that the inference in this case was the "sole and sufficient" evidence of his intent, and therefore under Ulster, the higher reasonable doubt standard is implicated. We reject his contention and apply the "more likely than not" standard because the inference was not the sole basis for the jury's finding of guilt. Evidence independent of the inference includes Mr. Stewart's unlawful entry shortly after Mr. Moreno left the apartment; Ms. Moreno's observance of a shadow on her bedroom wall; the location of the apartment; Mr. Stewart's possession of a bandana, which could be used to hide his face; and most significantly, Mr. Stewart's flight upon discovery.
However, Mr. Stewart argues that the proof in this case fails to meet either standard. Relying on State v. Aten, 130 Wn.2d 640, 927 P.2d 210 (1996), Mr. Stewart argues that where evidence supports an inference of guilt or innocence, it cannot support an inference of guilt. Applying this reasoning here, Mr. Stewart contends that because there are innocent explanations for his behavior the State failed to meet its burden of proof because it "offered no evidence which would be consistent with criminal intent alone." Br. of Appellant at 9. Mr. Stewart suggests that one such plausible explanation is that "passing by in the hall, [Mr. Stewart] could have noticed that the door had been left ajar and decided to pull it closed." Id. at 6.
But Aten does not apply here. Aten involved the evidentiary corpus delecti rule and the sufficiency of the evidence to prove the corpus delecti. Aten, 130 Wn.2d at 656. It does not address whether the fact finder found the essential elements of the crime. The jury rejected any innocent explanations for Mr. Stewart's behavior and had sufficient evidence, regardless of the inference instruction, to find that he entered the apartment with intent to commit a crime.
CONCLUSION
Viewed in the light most favorable to the State, the evidence is sufficient to prove all of the elements of residential burglary. Accordingly, we affirm.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, C.J. and KULIK, J., concur.