Opinion
No. 53499-8-I
Filed: August 1, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-09259-1. Judgment or order under review. Date filed: 11/07/2003. Judge signing: Hon. Cheryl B. Carey.
Counsel for Appellant(s), Catherine Lynn Floit, Attorney at Law, PO Box 27713, Seattle, WA 98165.
Dana M Lind, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Counsel for Respondent(s), Amy R. Holt, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
A guard found Ernest Williams in a secured parking garage, crouched near a car that had just been broken into. We conclude that Williams' right to a unanimous jury was not violated, that sufficient evidence established Williams' intent to commit a crime, that Williams was not prejudiced by alleged jury misconduct, and that the trial court did not err in awarding restitution. Accordingly, we affirm Williams' conviction for second degree burglary.
FACTS
Ernest Williams was charged with first degree burglary with a deadly weapon enhancement after he allegedly entered a parking garage and broke the windows of several cars. At trial, Robert Badgley testified that he worked nights as a security guard at the Elliott Bay Plaza Apartments. Badgley's duties included patrolling the apartment parking garage, which was accessible to tenants only with a garage door opener or a key card.
During the early morning hours of December 27, 2002, Badgley made several routine patrols through level three of the garage and did not notice anything unusual. At about 2:30 a.m., just as he was beginning another patrol, Badgley noticed `a lot of glass' on and around a Ford Taurus. The window of the Taurus had been broken. Police later discovered that the windows of a Kia and Jetta had also been broken. The owners of the Kia and the Jetta found what appeared to be `pry' damage on the frames of the broken windows and reported that compact discs were missing from the cars.
Because of the amount of glass that was scattered around, Badgley became scared and drew his handgun. Almost immediately, he noticed a man, later identified as Williams, crouched down behind a nearby car.
Badgley ordered Williams to come out and then told him to get down on the ground. When Williams refused to cooperate, Badgley attempted to maneuver him to a nearby wall, so that he could call 911. At some point, Badgley thought Williams was swinging a silvery object at him. As Badgley jumped back, he accidentally discharged his gun. The object was later found to be a bent butter knife.
After hearing the gun, Williams dropped to his knees and pleaded with Badgley not to kill him. Williams told Badgley he wanted to show him his bag, which was located nearby. Williams then ran out of the garage.
Seattle Police Officer Dorie Scott was dispatched to the garage at 2:42 a.m. On the way, she learned that a man seen running away from the garage was wearing a blue coat and green pants. About two blocks from the garage, Officer Scott encountered Williams, who was wearing a dark coat and green pants. Initially, Williams ignored the officer's orders to stop. When Williams finally stopped, Officer Scott noticed that he was out of breath and sweating heavily.
After being advised of his rights, Williams explained that he had been running because he had been robbed. When asked why he did not flag down the officer or stop as directed, Williams indicated that he did not wish to have any contact with the police. Williams also provided an incorrect name. A short time later, Badgley identified Williams as the man he had encountered in the parking garage. Security camera videotapes showed Williams walking through the area and crouching down behind several cars before the encounter with Badgley.
The jury found Williams guilty of the lesser-included offense of second degree burglary and not guilty of the deadly weapon enhancement.
DECISION
Williams first contends that he was denied his right to a unanimous jury because the State failed to prove both the `enters unlawfully' and `remains unlawfully' means of committing burglary. Whenever a single offense may be committed in more than one way, unanimity is not required as to the means `so long as substantial evidence supports each alternative means.' State v. Kitchen, 110 Wn.2d 403, 410, 756 P.2d 105 (1988). But `[i]f one of the alternative means upon which a charge is based fails and there is only a general verdict, the verdict cannot stand unless the reviewing court can determine that the verdict was founded upon one of the methods with regard to which substantial evidence was introduced.' State v. Bland, 71 Wn. App. 345, 354, 860 P.2d 1046 (1993); see also State v. Ortega-Martinez, 124 Wn.2d 702, 708, 881 P.2d 231 (1994).
The jury in this case was instructed that in order to find Williams guilty of burglary, it had to find that he `entered or remained unlawfully in a building.' See RCW 9A.52.030(1). Williams concedes that the evidence was sufficient to establish the `enters unlawfully' means, but relying on State v. Klimes, 117 Wn. App. 758, 73 P.3d 416 (2003), he maintains there was insufficient evidence, as a matter of law, to establish the `remains unlawfully' means. In a supplemental brief, Williams contends he was denied effective assistance when defense counsel proposed an instruction that included an alternative means that was not supported by the evidence.
In Klimes, this court indicated that the alternative means of committing burglary are repugnant to one another and that the `remains unlawfully' means applies only if the initial entry was lawful. See Klimes, 117 Wn. App. at 765-68 (citing State v. Collins, 110 Wn.2d 253, 751 P.2d 837 (1988), and State v. Thomson, 71 Wn. App. 634, 861 P.2d 492 (1993)). But we recently retreated from this portion of the Klimes analysis and concluded that the `remains unlawfully' means of committing burglary may apply even if the initial entry is unlawful:
[N]either Collins nor Thomson suggests that unlawful remaining, for purposes of burglary, occurs only when the initial entry is lawful. For example, in the common situation where a stranger breaks into a building, the entry is not then licensed, invited, or otherwise privileged and is therefore clearly unlawful. Having entered in this manner, the defendant cannot be said to have any license or privilege to be in the building at all. Consequently, the defendant's continuing presence in the building satisfies the statutory definition of unlawful remaining. Regardless of whether the defendant possessed an intent to commit a crime at the time of the unlawful entry, if the defendant unlawfully remains with the intent to commit a crime, we see no reason such conduct does not satisfy the requirements for burglary.
State v. Allen, ___ Wn. App. ___, 110 P.3d 849, 853 (2005).
Consequently, the evidence of Williams' continuing presence in the garage after an unlawful entry was sufficient to establish an unlawful remaining for purposes of burglary. Because the evidence was sufficient to support both alternative means, Williams' right to a unanimous jury was not violated. Nor was defense counsel's performance deficient when he proposed a jury instruction including both alternative means.
Williams next contends that the evidence was insufficient to establish that he entered or remained unlawfully `with the intent to commit a crime' against a person or property in the garage. See RCW 9A.52.030(1). The intent to commit a crime `may be inferred if the defendant's conduct and surrounding facts and circumstances plainly indicates such an intent as a matter of logical probability.' State v. Woods, 63 Wn. App. 588, 591, 821 P.2d 1235 (1991).
It was undisputed that Williams entered the secured garage without permission. The security guard found him crouched down, near several cars in which the windows had just been shattered. The guard had patrolled the area within the past hour and had not noticed any damage. Williams had a bent butter knife that could have been used to pry out the car windows and fled when confronted. When stopped by the police a short distance away, Williams lied about being robbed and then gave a false name. Viewed in the light most favorable to the State, the foregoing circumstances strongly supported an inference that Williams intended to commit a crime in the garage. The evidence was sufficient to support his conviction for second degree burglary.
Williams next contends the trial court erred in denying his motion for a new trial. Following the verdict, several jurors informed defense counsel that they had discovered some small pieces of glass in the pocket of Williams' jacket and in his hat, clothing that Williams was wearing at the time of his arrest. Apparently, some jurors indicated that the presence of the glass was the basis for their finding that Williams was guilty of burglary.
Williams moved for a new trial under CrR 7.5(a), arguing, among other things, that the jury had considered evidence `not allowed by the court,' that the jury had committed misconduct by considering extrinsic evidence, and that the `irregularity' had prevented Williams from having a fair trial. See CrR 7.5(a)(1), (2), (5). The trial court denied the motion, concluding that the jury had not committed misconduct because the clothing had been admitted with no restrictions and that the glass would, in any event, have been admissible. The court commented that counsel has an obligation to object to evidence that should not be considered by the jury. We review the trial court's decision for an abuse of discretion. State v. Balisok, 123 Wn.2d 114, 117, 866 P.2d 631 (1994).
Williams argues the glass pieces were `extrinsic evidence' and the jury therefore committed misconduct in considering them. See State v. Pete, 152 Wn.2d 546, 552, 98 P.3d 803 (2004) (jury consideration of extrinsic evidence is misconduct that may justify a new trial). `Extrinsic evidence' is `information that is outside all the evidence admitted at trial, either orally or by document.' Balisok, 123 Wn.2d at 118 (quoting Richards v. Overlake Hosp. Med. Ctr., 59 Wn. App. 266, 270, 796 P.2d 737 (1990)). Under CrR 7.5(a)(1), the trial court also has discretion to grant a new trial if it `affirmatively appears that a substantial right of the defendant was materially affected' by the jury's receipt of `any evidence not allowed by the court.' Such evidence is improper `because it is not subject to objection, cross examination, explanation or rebuttal.' Balisok, 123 Wn.2d at 118.
The glass pieces in Williams' clothing were not `outside all the evidence,' but rather were a part of evidence that was admitted without any objection or limitation. As the trial court noted, Williams' clothing was in fact subject to objection by the parties, but no objection was made. The record does not support Williams' assertion that the clothing was admitted solely on the issue of identification. Absent an objection or limiting instruction, `evidence admitted as relevant for one purpose is deemed relevant for others.' State v. Myers, 133 Wn.2d 26, 36, 941 P.2d 1102 (1997). Under the circumstances, we cannot say that the trial court abused its discretion in determining that no jury misconduct occurred. See State v. Havens, 70 Wn. App. 251, 255-56, 852 P.2d 1120 (1993).
Williams' reliance on State v. Burke, 124 Wash. 632, 215 P. 31 (1923), is misplaced. In Burke, a prosecution for burglary, the court held that the defendant was entitled to a new trial after jurors used a magnifying glass to determine if fine particles of wood on a hacksaw found in defendant's car matched fresh saw marks on the handle of a sledge hammer found at the scene of a bank robbery. But the basis for the court's characterization of jury misconduct was not the examination of the wood particles on the hacksaw blade, but rather the jury's receipt from the bailiff of the magnifying glass `which was not an exhibit in the case, without the knowledge or the instructions of the court.' State v. Burke, 124 Wash. at 636. Burke provides no support for Williams' claim that the jury committed misconduct in this case.
But even if the jury's consideration of the glass was improper, the error was harmless. Jury consideration of any material not properly admitted as evidence requires a new trial only if there is a reasonable ground to believe that the defendant was prejudiced. State v. Pete, 152 Wn.2d at 555 n. 4. Williams was found crouching near several cars that had been broken into just a short time earlier. Security videos showed Williams walking through the area just before he was discovered, and there was no evidence indicating anyone else was in the garage during this time. Williams was carrying a bent knife that could have been used to pry the car windows out from their frames. Shattered glass from the broken windows had been spread over a relatively large area. Under these circumstances, we agree with the trial court that the glass found in Williams' clothing was relevant on the issue of whether he intended to commit a crime and would therefore have been admissible. See ER 401, 402. Because Williams was not prejudiced by the admission of the glass, the trial court did not abuse its discretion in denying his motion for a new trial.
Finally, Williams contends the trial court erred in ordering him to pay $713.11 in restitution for damages to one of the cars and for missing compact discs. He argues that because there was no proof that he broke into the cars, there was no causal connection between his burglary conviction and the damages. We disagree.
When authorized by statute, the imposition of restitution is generally within the broad discretion of the trial court. State v. Enstone, 137 Wn.2d 675, 679, 974 P.2d 828 (1999). A restitution order must, however, be based on the existence of `a causal relationship between the crime charged and proven and the victim's damages.' State v. Tetters, 81 Wn. App. 478, 480, 914 P.2d 784 (1996) (quoting State v. Blair, 56 Wn. App. 209, 214-15, 783 P.2d 102 (1989)). A sufficient causal connection exists to support a restitution order if `but for' the offense committed, the loss or damages would not have occurred. State v. Hunotte, 69 Wn. App. 670, 676, 851 P.2d 694 (1993). Restitution must be based on the specific crime charged and not on the defendant's `general scheme.' State v. Miszak, 69 Wn. App. 426, 428, 848 P.2d 1329 (1993).
In this case, the circumstances supported a strong inference that Williams broke into the cars during the course of the burglary. No evidence suggested that any of the damages occurred at another time or that someone else might have been responsible. But for Williams' commission of the crime, the damages and loss would therefore not have occurred. See State v. Mead, 67 Wn. App. 486, 491, 836 P.2d 257 (1992) (property damage may be linked to offense of burglary for purposes of restitution). The court did not abuse its discretion in imposing restitution.
Affirmed.
BAKER, ELLINGTON and SCHINDLER, JJ.