Opinion
No. 51697-3-I.
Filed: March 15, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No. 02-1-02187-0. Judgment or order under review. Date filed: 12/18/2002. Judge signing: Hon. David F Hulbert.
Counsel for Appellant(s), Thomas Michael Kummerow, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Counsel for Respondent(s), Constance Mary Crawley, Attorney at Law, Snohomish Co Courthouse, 3000 Rockefeller Ave, Everett, WA 98201-4060.
Although a jury is permitted to infer a fact essential to a finding of guilt from other proven facts, there is insufficient evidence here to support the inference or a conclusion that Young entered or remained in the building with the intent to commit a crime beyond a reasonable doubt. The conviction is reversed.
FACTS
At approximately 2 a.m. on October 5, 2002, the alarm triggered at Barci Automotive in Everett. Everett police responding to the call discovered a broken window. After Mr. Barci unlocked the door, a K-9 officer, his dog, and other officers announced their presence and entered the building. The dog's actions indicated that someone was inside an El Camino parked in the building near the broken window. An officer approached the vehicle and saw Scot Young on the seat. Young did not respond to commands to show his hands. Young was either ignoring the officers, asleep, or passed out from the consumption of alcohol. He was arrested at the scene and taken to police headquarters.
Young is a homeless person who worked in an Everett restaurant at times. In the hours between his shift and his arrest he had a number of drinks. Young claimed he did not remember what happened after he left the second bar until he was booked at the Snohomish County jail. Young was charged with second degree burglary. A jury trial followed.
At trial, Barci testified that he closed his business about 6 p.m. the evening before the break-in. He testified that all the windows were intact at the time. He gave nobody permission to enter the business after closing. Police testified regarding their arrival and what they found at the scene.
Young testified he did not remember breaking a window at the auto repair business, did not remember entering the business, and did not remember hearing the alarm. He admitted he was discovered in a parked car on the premises, either asleep or passed out.
The jury was instructed regarding the permissive inference of intent in burglary cases:
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.
Instruction 9, Clerk's Papers at 39.
There was no objection to the instruction.
Verbatim Report of Proceedings (VRP) (Dec. 2 and 3, 2002) at 65.
In closing argument, both the deputy prosecutor and defense counsel emphasized that the trial issue was whether the defendant entered or remained with the intent to commit a crime. The prosecutor discussed the evidence and argued a permissible inference therefrom. The prosecutor argued:
He [Young] had no reason to be in there. By the way, you don't have to prove what kind of crime he intended to commit. The theft, vehicle prowl, malicious mischief, any number of crimes. Only that he had no legitimate reason to be in that building; and he had no legitimate reason to be in there.
VRP (Dec. 2 and 3, 2002) at 69.
Defense counsel argued there was no evidence indicating Young was in the building to commit a crime. He argued that the building owner and the police suggested Young was there to steal, and that this was the question the jurors had to answer, whether Young entered the building to steal something. Counsel acknowledged the permissive inference, but argued there simply was no evidence to support that Young had any intent to commit a crime. He argued that it didn't make any sense for his client to break in to steal, and then remain, sleep, or pass out after the alarm went off. Although Young did not recall any of the events, he and counsel suggested Young entered the building to get out of the early morning cold and to sleep off his drunkenness.
On rebuttal, the prosecutor argued the question before the jury was not whether Young broke in with the intent to steal, but whether he had any lawful, legitimate reason to be in the building. The prosecutor argued that Young did not have any lawful, legitimate reason to break into or remain in the building.
After rebuttal, the jury was excused to the jury room. After the jury left, defense counsel objected to the prosecutor's argument, claiming that the prosecutor incorrectly stated the law by arguing that the State only had to prove that Young did not have a legitimate reason for being in the building. Counsel argued the State's burden was to prove that Young entered with the intent to commit a crime therein. The trial court asked defense counsel what he would suggest the trial court do. Counsel suggested bringing the jury back into court for the judge to reread the `to convict' instruction to them. Stating that he did so in an abundance of caution, the trial court brought the jury back into court and reread Instruction 8, the `to convict' instruction, without further comment.
The jury found Young guilty of second degree burglary. Young appeals.
DECISION
Young argues there is insufficient evidence to support the jury's conclusion that he entered the building with the intent to commit a crime. We agree.
It is axiomatic that the State must prove every element of the charged offense beyond a reasonable doubt. It is not the role of the reviewing court to determine whether or not it believes the evidence at trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. A challenge to the sufficiency of the evidence acknowledges the truth of the State's evidence and all reasonable inferences drawn therefrom.
State v. Green, 94 Wn.2d 216, 220-21, 616 P.2d 628 (1980); State v. Tongate, 93 Wn.2d 751, 753, 613 P.2d 121 (1980).
Green, 94 Wn.2d at 221 (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
A person commits second degree burglary `if, with the 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.' A jury is permitted to infer a fact essential to find guilt from another fact if reason and experience support the inference. Specifically, RCW 9A.52.040 provides:
RCW 9A.52.030 (emphasis added).
State v. Bencivenga, 137 Wn.2d 703, 707, 974 P.2d 832 (1999) (citing State v. Jackson, 112 Wn.2d 867, 875, 774 P.2d 1211 (1989) (quoting Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 87 L.Ed.2d 1519 (1943))).
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.
Intent to commit a crime may be inferred from all the facts and circumstances surrounding the commission of an act. Although intent may not be inferred from conduct patently equivocal, it may be inferred from conduct that plainly indicates such intent as a matter of logical probability. But for the fact finder to draw inferences from proven circumstances, the inferences must be rationally related to the proven fact and the presumed fact must follow beyond a reasonable doubt from the proven fact.
State v. Grimes, 92 Wn. App. 973, 982, 966 P.2d 394 (1998).
State v. Bergeron, 105 Wn.2d 1, 19-20, 711 P.2d 1000 (1985) (citing State v. Lewis, 69 Wn.2d 120, 124, 417 P.2d 618 (1966)).
Jackson, 112 Wn.2d at 875-76 (citing State v. Jeffries, 105 Wn.2d 398, 442, 717 P.2d 722 (1986), and State v. Blight, 89 Wn.2d 38, 44, 569 P.2d 1129 (1977)).
Under the circumstances here, Young's conduct is equivocal. The State relies on the fact that Young unlawfully entered and remained, but has failed to prove that he entered with any intent to commit a crime. We hold that the evidence does not justify a finding beyond a reasonable doubt that Young had the requisite intent to commit a crime in the auto body facility.
Because we find the State did not prove that Young had the requisite intent to commit a crime, the issue of prosecutorial misconduct need not be addressed.
The judgment and sentence are reversed.
ELLINGTON and AGID, JJ., concur.