125 P.3d 215 (Wash.App. Div. 3 2005), 23290-5, State v. J.P.

Docket Nº:23290-5-III.
Citation:125 P.3d 215, 130 Wn.App. 887
Opinion Judge:SCHULTHEIS, J.
Party Name:STATE of Washington, Respondent, v. J.P., Appellant.
Attorney:David N. Gasch, Gasch Law Office, Spokane, WA, for Appellant., Kevin Michael Korsmo, Attorney at Law, Spokane, WA, for Respondent. David N. Gasch, for appellant., Steven J. Tucker, Prosecuting Attorney, and Kevin M. Korsmo, Deputy, for respondent.
Judge Panel:WE CONCUR: KATO, C.J., and SWEENEY, J.
Case Date:December 20, 2005
Court:Court of Appeals of Washington

Page 215

125 P.3d 215 (Wash.App. Div. 3 2005)

130 Wn.App. 887

STATE of Washington, Respondent,


J.P., Appellant.

No. 23290-5-III.

Court of Appeals of Washington, Division 3, Panel Four.

December 20, 2005.

Page 216

David N. Gasch, Gasch Law Office, Spokane, WA, for Appellant.

Kevin Michael Korsmo, Attorney at Law, Spokane, WA, for Respondent.


[130 Wn.App. 890] ¶ 1 J.P. was caught crawling out of the window of a vacant home, which was being prepared for sale. He was charged with and adjudicated guilty of residential burglary. He challenges the sufficiency of the evidence, claiming that because the State did not sufficiently establish that the witness it called had authority over the premises, it did not prove unlawful presence or entry. He also claims that he may assert abandonment of property,

Page 217

a defense in the criminal trespass statute, because that defense negates the unlawful entry and presence element of the crime, which is common to both criminal trespass and residential burglary, and residential burglary is a lesser included offense of criminal trespass. We conclude that the State established that the witness it presented had authority over the premises and thereby established unlawful presence and entry. Because we also conclude that the defendant may assert the abandonment defense but the residence was not abandoned here, we affirm.


¶ 2 Police were dispatched to a burglary-in-progress call at a residence at 1119 North Madelia in Spokane at 8 p.m. on February 9, 2004. Officers took three boys into custody who were seen leaving the residence through a window. Looking through an open window, officers detected the odor of fresh paint and saw paint running down the windows as well as on the walls, countertops, and refrigerator.

¶ 3 Police identified one of the boys as J.P. and interviewed him. J.P. waived his constitutional rights and gave a statement. He admitted that he painted a leaf-like design [130 Wn.App. 891] on one of the walls and the two other boys painted on the walls and windows with paint they found inside. When the officers concluded their investigation, they were unable to contact a responsible party to secure the residence. According to procedure, an officer called Spokane City Code Enforcement and reported that the house was "unsecured and abandoned." Clerk's Papers at 18.

¶ 4 At trial, Sue Melcher, an agent for Tomlinson-Black Realty, testified that in January 2004, she was contracted by Ocwen, a company for which she handles repossessed homes on behalf of the Department of Veterans Affairs, to serve as the listing agent for the residence at issue. Thereafter, she changed the locks on the residence and placed her personal lock box on the door. On the date of this incident, the only keys to the residence were in Ms. Melcher's possession, and she was the only person with the combination to the lock box. Ms. Melcher informed the court that she does not know J.P. and she did not give him permission to be inside the residence.

¶ 5 J.P. was found guilty of third degree malicious mischief and residential burglary. The court entered findings of fact and conclusions of law.


¶ 6 A challenge to the sufficiency of the evidence admits the truth of the State's evidence and all reasonable inferences. State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992). We review the evidence to support a juvenile...

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