Opinion
No. 61847-4-I.
April 27, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-09643-1, Mary E. Roberts, J., entered June 2, 2008.
Affirmed by unpublished opinion per Cox, J., concurred in by Lau and Leach, JJ.
The Sixth Amendment of the United States Constitution and article 1, section 22 of our state constitution require that charging documents include all essential statutory and nonstatutory elements of a crime. The information charging Toby Johnson properly alleged all statutory elements of the crime and adequately informed Johnson that he did not have the right to enter the building he was accused of burglarizing. Moreover, his statement of additional grounds for review does not warrant any relief. We affirm.
State v. Goodman, 150 Wn.2d 774, 784, 83 P.3d 410 (2004).
In the early morning hours of June 16, 2007, an alarm was tripped at the Tri Tec Company's building in Kent. Officer Shane Walters responded first to the scene and, upon approaching the building, observed two men coming over a fence from the Tri Tec building. When Officer Walters told the men to stop, one of them complied and the other ran. Officer John Shipman and his K-9 partner, Jango, responded to the scene to track the fleeing suspect. They tracked him to a nearby stream. Jango pulled the suspect, later identified as Toby Johnson, from the water, and police arrested him.
Shortly after the alarm, a Tri Tech employee arrived at the building and inspected the premises with police. He observed that the back door was open and that someone had cut a hole in it. In addition, locks on two Tri Tec containers behind the building had been broken.
The State charged Johnson with second degree burglary. A jury convicted him as charged.
Johnson appeals.
SUFFICIENCY OF INFORMATION
Johnson asserts for the first time on appeal that the charging information is insufficient because it did not allege ownership or occupancy of the building and, thereby failed to negate Johnson's right to enter the burglarized premises. We disagree.
The Sixth Amendment of the United States Constitution and article 1, section 22 of our state constitution require that charging documents include all essential statutory and nonstatutory elements of a crime. The purpose of the requirement is to give notice to the accused of the nature of the crime in order to prepare a defense.
Id. at 784.
State v. Tandecki, 153 Wn.2d 842, 846-47, 109 P.3d 398 (2005) (citing State v. Kjorsvik, 117 Wn.2d 93, 101, 812 P.2d 86 (1991)).
When challenged for the first time on appeal, we construe a charging document liberally in favor of validity. The information is sufficient if (1) the necessary facts appear in any form or, by fair construction can be found, in the charging document, and (2) the defendant cannot show actual prejudice from lack of notice.
Id. at 848-49.
Id. (citing Kjorsvik, 117 Wn.2d at 105-06).
Here, the State charged Johnson with second degree burglary under RCW 9A.52.030(1), which 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.
As defined by the burglary statute, "[a] person `enters or remains unlawfully' in or upon premises when he is not then licensed, invited, or otherwise privileged to so enter or remain."
The information charging Johnson stated in relevant part:
[T[he defendant TOBY V. JOHNSON in King County, Washington, during a period of time intervening between June 15, 2007 through June 16, 2007, did enter and remain unlawfully in a building, located at 8206 South 192nd Avenue, Kent, in said county and state, with intent to commit a crime against a person or property therein;
Contrary to RCW 9A.52.030. . . .
Clerk's Papers at 1-2.
This information mirrors the statute and contains all of the statutory elements of the charged crime: (1) entering or remaining unlawfully in a building other than a vehicle or dwelling, and (2) with intent to commit a crime against a person or property therein. While an allegation of ownership or occupancy of the burglarized premises may be necessary to prove that entry was unlawful, neither is an essential element of the crime.
See State v. Brunson, 128 Wn.2d 98, 104-05, 905 P.2d 346 (1995) (listing the two elements of second degree burglary).
See State v. Klein, 195 Wash. 338, 80 P.2d 825 (1938) (recognizing that ownership is not an essential element of burglary and that allegation of ownership is material only: "(1) To show on the record that the building burglarized is not the property of the accused, and (2) to identify the offense to such an extent as to protect the accused from a second prosecution for the same offense"); State v. Knizek, 192 Wash. 351, 355, 73 P.2d 731 (1937) (ownership of burglarized building is not essential element of the offense); State v. Wilson, 136 Wn. App. 596, 150 P.3d 144 (2007) (examining whether perpetrator maintained a licensed or privileged occupancy of the premises in order to determine whether offender's presence is unlawful for purposes of burglary).
Moreover, in liberally construing the information, we conclude that the elements of the crime and facts alleged on the face of the information sufficiently apprised Johnson that he was accused of burglarizing a building that he had no right to enter or remain inside. Under our burglary statute, "[a] person `enters or remains unlawfully' in or upon premises when he is not then licensed, invited, or otherwise privileged to so enter or remain." Accordingly, the charging document here adequately indicated that Johnson had no right to enter the premises. This is notice sufficient to prepare a defense.
Relying on State v. Klein, Johnson argues that ownership or occupancy of the burglarized premises must be alleged in the information in order to negate the defendant's right to enter. We disagree.
195 Wash. 338, 80 P.2d 825 (1938).
In Klein, two defendants appealed their convictions for second degree burglary, claiming the information was defective because it alleged neither ownership nor occupancy of the building. The information at issue did not allege ownership of the building but named the building's occupant.
At that time, our state's criminal code defined second degree burglary as follows:
Every person who, with intent to commit some crime therein shall, under circumstances not amounting to burglary in the first degree, enter the dwelling-house of another or break and enter, or, having committed a crime therein, shall break out of, any building or part thereof, or a room or other structure wherein any property is kept for use, sale or deposit, shall be guilty of burglary in the second degree and shall be punished by imprisonment in the state penitentiary for not more than fifteen years.
State v. Klein, 195 Wash. 338, 340, 80 P.2d 825, 827 (1938) (quoting Rem. Rev. Stat. § 2579).
The information charging the two men read as follows:
They, the said Harry Klein and James Cole, in the county of Snohomish, state of Washington, on or about the 29th day of August, 1937, did wilfully, unlawfully and feloniously , and with the intent to commit some crime therein, to-wit: larceny, break and enter a building , to wit: The Tradewell Store building , located at 2813 Colby avenue[sic], in the city of Everett, Washington, being managed by one John Bird of the city of Everett, Washington, said building being a building in which property was then and there kept for use, sale or deposit.
Id. at 339 (emphasis added).
The court reasoned that title ownership need not be alleged in the information. Rather, possession or occupancy at the time of the offense "sufficient to negative the right of the person charged with the crime to enter the building" must be shown. Because the information at issue in Klein alleged that the building was "managed by one John Bird," indicating occupancy by someone other than the accused, the court concluded that the information was sufficient.
Id. at 342.
Id. at 341-42.
Id. at 343-44.
Specifically, Johnson argues that the holding in Klein recognized that occupancy was an essential element of second degree burglary. He contends that although the burglary statutes have changed, Klein requires the information to mention ownership or occupancy to be sufficient. Johnson misreads this case.
Klein does not stand for the proposition that the identity of the legal owner or occupant is an essential element that must be charged in the information. Rather, such information is required only to the extent it shows that the defendant did not have the right or privilege to enter the building. Moreover, under Washington's current burglary statute, one of the elements of second degree burglary — "entering or remaining unlawfully in a building" — makes it clear that the person charged with the crime does not have a right to enter the building. Klein requires nothing more.
See State v. Klein, 195 Wash. 338 (recognizing that ownership is not an essential element of burglary and that an allegation of ownership is material only for two purposes: "(1) To show on the record that the building burglarized is not the property of the accused, and (2) to identify the offense to such an extent as to protect the accused from a second prosecution for the same offense.").
See RCW 9A.52.030(1); 9A.52.010(3).
Finally, Johnson argues that the Klein court determined that the words "unlawfully . . . enter" as alleged in that information did not obviate the need to allege ownership or occupancy. This argument is unpersuasive.
We do not read Klein to offer guidance on the meaning of words in our current statute. The Legislature's definition of the phrase "enters and remains unlawfully" is what informs our analysis here.
In sum, because the information here properly included all essential elements of the charged crime, we conclude it is constitutionally sufficient.
STATEMENT OF ADDITIONAL GROUNDS
Johnson raises four issues in his statement of additional grounds for review. None warrants relief.
Johnson argues the evidence is insufficient to support his conviction for second degree burglary. He points to alleged discrepancies between Officer Winters's certification for probable cause and his testimony at trial. He also argues that the chain link fence Officer Winters heard rattling as he approached the Tri Tech building was attached to a public parking lot.
Evidence is sufficient to support a conviction if, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. We defer to the trier of fact to resolve any conflicts in testimony, to weigh the persuasiveness of evidence, and to assess the credibility of the witnesses. Here, the record contains testimony that Officer Winters observed the suspect coming over a fence from the Tri Tech building's fenced area. Although some of the evidence may have been conflicting as Johnson points out, the record contains sufficient evidence to support the jury's verdict.
State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)).
State v. Boot, 89 Wn. App. 780, 791, 950 P.2d 964 (1998).
Johnson next argues the prosecutor committed misconduct by adding a police officer to the witness list and new evidence against his co-defendant the day before trial, which he claims prejudiced him. To succeed on a claim of prosecutorial misconduct, a defendant must establish both misconduct and prejudice. Because Johnson fails to show how this conduct prejudiced his trial, this claim fails.
State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003).
Johnson next argues that inaccuracies in the information and the jury instructions prejudiced his trial. He claims that the address of the burglarized building is incorrectly listed on the information as "8206 South 192nd Street." He contends the proper address is "8206 South 192nd Avenue." As we have previously discussed, the information properly apprised Johnson of all elements of the crime charged. Even assuming there was a scrivener's error in the address on the information, absent a showing of prejudice, such an error is not grounds for reversal. Johnson fails to show how this alleged error prejudiced him.
State v. Borrero, 97 Wn. App. 101, 107, 982 P.2d 1187 (1999).
Similarly, Johnson argues that the instructions the jury received on the lesser included offense of first degree criminal trespass incorrectly stated "2006," and should have stated "2007." We note that the jury instructions given by the trial court are not contained in the record on appeal. This precludes our consideration of Johnson's argument.
We affirm the judgment and sentence.
WE CONCUR.