Opinion
No. 37398-0-II.
March 3, 2009.
Appeal from a judgment of the Superior Court for Thurston County, No. 07-1-02046-6, Chris Wickham, J., entered February 15, 2008.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Penoyar, A.C.J., and Armstrong, J.
A jury found James Patrick Aarts guilty of second degree burglary. Aarts appeals his conviction and sentence arguing that (1) the charging document failed to allege that Aarts entered a building "other than a dwelling," (2) the elements jury instruction was deficient because it did not require the State to prove beyond a reasonable doubt that Aarts entered a building "other than a dwelling," and (3) the evidence was not sufficient to prove beyond a reasonable doubt that the building Aarts entered was not a dwelling. Aarts also contends that the trial court failed to properly determine his criminal history and offender score at sentencing. Because "other than a dwelling" is not an element of second degree burglary, we affirm Aarts's conviction. Because Aarts is no longer incarcerated and is not subject to conditions of community custody, his sentencing challenge is moot and we do not address it.
FACTS
Background Facts
Dale Brumfield is the owner of Brumfield's Auctioneers, a business located in Thurston County, Washington. On the morning of November 26, 2007, Brumfield drove by his business property and saw that everything was in order. Later that same afternoon, Brumfield again drove by the property and noticed that a door to one of his storage buildings was now open. Investigation later revealed that one of the building's door hinges was broken and the other was bent. Brumfield saw Aarts standing at the base of the open storage building carrying a box. Brumfield called the Thurston County Sheriff's office to report the burglary and followed Aarts as he drove off. When Aarts turned down an unfamiliar road and beckoned Brumfield to continue following, Brumfield became concerned for his safety. He stopped pursuing Aarts and waited for the sheriff to arrive.
Lieutenant Barnes Ware responded to Brumfield's call, spotted Aarts's vehicle parked on the side of the road, and found Aarts kneeling behind the car. Deputy Clay Westby arrived moments later. When the two officers took Aarts into custody they saw vacuum cleaner parts, scrap metal, and a hammer near Aarts's vehicle. Westby asked Brumfield to come to where Aarts was being detained. At the scene, Brumfield identified Aarts as the person he had seen at his open storage building. Brumfield also identified the vacuum parts, scrap metal, and hammer as his personal property that had been stored at the Brumfield's Auctioneers' site. Procedural Facts
On November 28, 2007, Thurston County charged Aarts with one count of second degree burglary. The information alleged that Aarts, "in the State of Washington, on or about November 26, 2007, with intent to commit a crime against a person or property therein, did enter or remain unlawfully in a building." Clerk's Papers (CP) at 2.
A jury trial began on February 5, 2008, and concluded the next day. The trial court instructed the jury on the definition and elements of second degree burglary as follows:
A person commits the crime of burglary in the second degree when he or she enters or remains unlawfully in a building with intent to commit a crime against a person or property therein.
CP at 32.
To convict the defendant of the crime of burglary in the second degree as charged, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 26th day of November, 2007, [Aarts] entered or remained unlawfully in a building,
(2) That the entering or remaining was with intent to commit a crime against a person or property therein, and
(3) That the acts occurred in the State of Washington. If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
CP at 36.
On February 6, 2008, the jury found Aarts guilty of second degree burglary. Sentencing commenced on February 15, 2008. The trial court calculated Aarts's offender score at two, which included two prior drug convictions from 2003 and 2004, and imposed a mid-standard range sentence of eight months.
Aarts timely appeals his conviction and sentence.
ANALYSIS
All of Aarts's challenges to his conviction rest on his assertion that "other than a dwelling" is an element of the crime of second degree burglary. To answer whether second degree burglary, RCW 9A.52.030(1), includes as an essential element, an affirmative showing that the building entered was not a dwelling requires that we engage in statutory construction. We review questions of statutory construction de novo. State v. Flores, 164 Wn.2d. 1, 10, 186 P.3d 1038 (2008).
In interpreting a statute, our purpose is to determine and enforce the intent of the legislature. State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005). "'[I]f the statute's meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent.'" Jacobs, 154 Wn.2d at 600 (quoting Dep't of Ecology v. Campbell Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002)). In ascertaining the "plain meaning" of a statute, we look not only to the ordinary meaning of the language at issue, but also to the general context of the statute, related provisions, and the statutory scheme as a whole. Jacobs, 154 Wn.2d at 600. If, upon this examination, the provision is subject to more than one reasonable interpretation, it is ambiguous and the rule of lenity requires us to interpret the statute in favor of the defendant. Jacobs, 154 Wn.2d at 600-01.
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." (Emphasis added.) Looking at the statutes defining the various degrees of burglary, it is apparent that the legislature did not intend "other than a . . . dwelling" an essential element of the crime of second degree burglary. The legislature added the language "or a dwelling" to the second degree burglary statute in 1989 when it created the more serious offense of residential burglary. S.B. 5233, 51st Leg., Reg. Sess. (Wash. 1989); Laws of 1989 2nd Ex. Sess., ch. 1, §§ 1-2 (codified at RCW 9A.52.025 ; codified as amended at RCW 9A.52.030). It is clear from the plain language of the act creating the separate degrees of burglary that the legislature added "a dwelling" to distinguish residential burglary from second degree burglary. But contrary to Aarts's argument, "not a dwelling" is not an additional element that the State must prove beyond a reasonable doubt. Although no Washington case has specifically dealt with Aarts's argument in the second degree burglary context, Washington case law interpreting other criminal statutes is instructive.
RCW 9A.52.025 states:
(1) A person is guilty of residential burglary if, with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle.
(2) Residential burglary is a class B felony. In establishing sentencing guidelines and disposition standards, the sentencing guidelines commission and the juvenile disposition standards commission shall consider residential burglary as a more serious offense than second degree burglary.
For example, in State v. Tinker, 155 Wn.2d 219, 222, 118 P.3d 885 (2005), our Supreme Court held that the property value was not an essential element to the crime of third degree theft despite the language in the statute, "'does not exceed two hundred and fifty dollars in value'" (quoting RCW 9A.56.050(1)). Our Supreme Court reasoned that property value was not necessary to establish the illegality of the theft behavior because the property's value merely served to distinguish the various degrees of theft and, thus, "[t]he act of taking any item constitutes at least third degree theft." Tinker, 155 Wn.2d at 222.
The third degree theft statute at issue in Tinker, RCW 9A.56.050(1), states in pertinent part: A person is guilty of theft in the third degree if he or she commits theft of property or services which (a) does not exceed two hundred and fifty dollars in value.
Also in State v. Feeser, 138 Wn. App. 737, 744, 158 P.3d 616 (2007), review denied, 163 Wn.2d 1007 (2008), we held that the absence of premeditation is not an element of second degree murder despite the language in the statute, "without premeditation." In reaching this conclusion, we relied on the reasoning in Tinker to find that premeditation merely served to distinguish second degree murder from first degree murder and was, thus, not necessary to establish the criminal behavior of second degree murder. Feeser, 138 Wn. App. at 744. Several other Washington cases support the conclusion that language in a criminal statute does not create additional elements but simply serves to distinguish various degrees of a crime. See State v. Leyda, 157 Wn.2d 335, 341, 138 P.3d 610 (2006) (value of goods, services, and credit obtained through identity theft not an essential element of second degree identity theft); State v. Ward, 148 Wn.2d 803, 812-13, 64 P.3d 640 (2003) (absence of first degree or second degree assault not essential element of felony violation of no-contact order); State v. Dukowitz, 62 Wn. App. 418, 422, 814 P.2d 234 (1991) (absence of first, second, or third degree assault not essential element of simple assault), review denied, 118 Wn.2d 1031 (1992).
The second degree murder statute at issue in Feeser, RCW 9A.32.050(1), states in pertinent part:
A person is guilty of murder in the second degree when:
(a) With intent to cause the death of another person but without premeditation, he or she causes the death of such person or of a third person.
(Emphasis added.)
Here, it is the act of entering or remaining unlawfully in any building with the intent to commit a crime therein that establishes the crime of burglary. And whether a building is a dwelling does not define burglary but merely serves to distinguish residential burglary from second degree burglary. Because "other than a dwelling" is not an element of the crime of second degree burglary, and all of Aarts's challenges to his conviction rest on this assertion, we reject these challenges to his second degree burglary conviction and affirm.
Sentencing
Aarts also contends that the trial court erred in determining his criminal history and offender score at sentencing and argues that the State presented no evidence that Aarts had any criminal history. Because Aarts is no longer incarcerated and is not subject to any community custody conditions, his sentencing challenge is moot.
Generally, this court must dismiss an issue on appeal if the question presented is moot. State v. Enlow, 143 Wn. App. 463, 470, 178 P.3d 366 (2008). A case is moot when a court can no longer provide effective relief. State v. Ross, 152 Wn.2d 220, 228, 95 P.3d 1225 (2004). Here, Aarts's offender score calculation issue is moot because he is no longer in confinement, is not under any conditions of community custody, and is not subject to another miscalculation based on this alleged error if he is convicted of another crime in the future.
We can only provide two forms of effective relief from an excessive sentence based on an offender score miscalculation. First, when a defendant received an excessive sentence and is still confined, we can order resentencing that will result in his timely release from confinement. State v. Harris, ___ Wn. App. ___, 197 P.3d 1206, 1208 (2008) (citing In re Pers. Restraint of Cadwallader, 155 Wn.2d 867, 123 P.3d 456 (2005)). But Aarts is no longer confined. Second, if an offender is on community custody that should have begun earlier than it did because of an incorrect release date, upon resentencing the trial court may modify the termination date of his community custody. RAP 12.2; Harris, 197 P.3d at 1208. But the trial court did not sentence Aarts to community custody.
In Harris, we recognized that future sentencing courts may not simply rely on a criminal history from a previous judgment. 197 P.3d at 1209. Instead, the sentencing court must calculate the defendant's offender score on "the date of sentencing for the offense for which the offender score is being computed." RCW 9.94A.525(1); Harris, 197 P.3d at 1208. Further, if a defendant objects to his criminal history at sentencing, the State must re-prove prior convictions by the preponderance of evidence with either a certified judgment and sentence or, if none is available, other comparable evidence. Harris, 197 P.3d at 1208 (citing State v. Bergstrom, 162 Wn.2d 87, 93, 169 P.3d 816 (2007)). And "a prior judge's criminal history computation is not evidence of a certified judgment and sentence." Harris, 197 P.3d at 1208. Thus, the fact that Aarts may be convicted in the future of another crime has no bearing on the mootness of his sentencing challenge here, because this "offender score computation will not affect a hypothetical future sentence." Harris, 197 P.3d at 1209.
Accordingly, we affirm Aarts's second degree burglary conviction and do not address Aarts's challenge to the computation of his offender score.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J. and PENOYAR, A.C.J., Concur.