State v. Bishop

Decision Date15 June 1978
Docket NumberNo. 44962,44962
Citation90 Wn.2d 185,580 P.2d 259
PartiesThe STATE of Washington, Respondent, v. Joanne BISHOP, also known as Joanne Gosby, also known as Charlotte Kennebrew, Sharon Linda Johnson, and Sandra Lee Green, also known as Sandra Lee Baker, Appellants.
CourtWashington Supreme Court

Thorner, Kennedy & Gano, Ivy Elofson, Vincent, Hurst & Crossland, David K. Crossland, Porter, Schwab & Royal, Michael E. Schwab, Yakima, for appellants.

Jeffrey C. Sullivan, Pros. Atty., Catherine Lee Campbell, Asst. Pros. Atty., Yakima, for respondent.

BRACHTENBACH, Associate Justice.

Defendants challenge jury verdicts finding them guilty of first degree burglary. We affirm.

An individual occupying room No. 148 at a motel in Yakima was awakened at approximately 4:30 a. m. when he heard movement in his room. When he awoke, he saw three silhouetted figures which appeared to be women. He yelled and the three female figures departed the room through sliding glass doors into the courtyard outside the room.

During this time period, two detectives from the Yakima police department were stationed in the dining area of the motel engaged in a surveillance of the rooms surrounding the courtyard. At approximately 4:30 a. m., one of the detectives observed three females enter the courtyard complex of the motel and walk around and through the complex. The women paused at room No. 148 and were obscured from the officers' vision for approximately 30 seconds by a wall which juts out from the building and separates the rooms. They were next observed running from the area of room No. 148 and out of the motel courtyard complex, where they were apprehended by the police. Subsequently, when purses were seized from two of the women, each purse contained a rock. Their conviction for first degree burglary followed.

Defendants first take exception to the giving of instruction No. 14 1 which provides that when a person is shown to have unlawfully entered a dwelling, he shall be deemed to have entered with intent to commit a crime therein, unless he explains such entry by testimony satisfactory to the jury that such entry was made without criminal intent. This instruction was based on RCW 9.19.030, the applicable statute at the time of this trial. 2

Defendants claim that the instruction and the statute upon which it is based do not meet the standards for determining the constitutional validity of an evidentiary presumption enunciated by this court in State v. Roberts, 88 Wash.2d 337, 562 P.2d 1259 (1977). We do not agree.

The threefold test set forth in Roberts is as follows: (1) a presumption may not shift the ultimate burden of persuasion to a defendant, although it may operate to shift the initial burden of producing evidence as to an element of the crime charged; (2) a presumption may only be used to establish an element of a criminal offense when it is established that the fact presumed follows from the facts proven in support thereof beyond a reasonable doubt; (3) the jury must be informed that it is permitted, but not obligated, to accept the presumption, even if unrefuted.

First, has there been an unconstitutional shift in the burden of persuasion? The answer is no.

While shifting the burden of production to the defendant requires him to present some evidence with respect to the fact in issue, shifting the burden of persuasion requires him to affirmatively establish the fact in issue. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); Ashford & Risinger, Presumption, Assumption and Due Process in Criminal Case: A Theoretical Overview, 79 Yale L.J. 165 (1969).

The statute and instruction in issue do no more than shift the burden of production. The prosecution must affirmatively establish defendant's intent to commit a crime, albeit circumstantially. The defendant is not burdened with affirmatively establishing absence of intent he is only required to explain the unlawful entry by testimony satisfactory to the jury. As this court noted in State v. Roberts, supra, 88 Wash.2d at 341, 562 P.2d at 1261:

Mullaney, standing alone, does not render unconstitutional all . . . presumptions in the criminal law. It permits the use of an otherwise valid presumption, so long as the ultimate burden of persuasion as to the issue remains with the prosecution and the defendant is at most only required to produce some evidence, from whatever source, in opposition to it.

In Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973), the Supreme Court upheld an instruction that "possession of recently stolen property, if not satisfactorily explained" created an inference that the person in possession of the property knew it was stolen. Knowledge was an essential element of the crime charged. The court held that this instruction did no more than shift the burden of production to the defendant. Barnes v. United States, supra at 846 n.11, 93 S.Ct. 2357. Although Barnes was pre-Mullaney, the Mullaney court indicated that it regarded the Barnes -type presumption as shifting only the burden of production. Mullaney v. Wilbur, supra, 421 U.S. at 703 n.31, 95 S.Ct. 1881.

Secondly, we conclude that the proven facts (unlawful entry of a dwelling) establish the presumed facts (intent to commit a crime therein) beyond a reasonable doubt. "In determining whether or not (a) presumption meets this test, the court may utilize common experience, as well as empirical data and evidence which establishes a factual basis for the presumption." State v. Roberts, supra, 88 Wash.2d at 343, 562 P.2d at 1262. Common knowledge and experience support the presumption before us. The noncriminal reasons for unlawfully entering a dwelling are few.

Finally, the third prong of the Roberts test merely requires that the jury be instructed that the presumption is not conclusive and that the state still must sustain the burden of proving defendant's guilt beyond a reasonable doubt.

We have previously held that an instruction in the language of RCW 9.19.030 is sufficient to...

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55 cases
  • State v. Arbogast
    • United States
    • Washington Supreme Court
    • 31 Marzo 2022
    ...of persuasion requires defendants to affirmatively establish those elements based on the facts presented. See State v. Bishop , 90 Wash.2d 185, 188, 580 P.2d 259 (1978).¶ 20 As noted, Lively concerned the burden of persuasion for entrapment. 130 Wash.2d at 13, 921 P.2d 1035. Lively did not ......
  • State v. Savage
    • United States
    • Washington Supreme Court
    • 16 Octubre 1980
    ...it is permissible to employ a presumption which shifts to the defendant the burden of producing "some evidence." State v. Bishop, 90 Wash.2d 185, 188-89, 580 P.2d 259 (1978); State v. Roberts, 88 Wash.2d 337, 341, 562 P.2d 1259 (1977). We have simultaneously held on the basis of the due pro......
  • State v. Neider
    • United States
    • West Virginia Supreme Court
    • 20 Septiembre 1982
    ...81 (1972); State v. Carmichael, 405 A.2d 732 (Me.1979); People v. Simpson, 5 Mich.App. 479, 146 N.W.2d 828 (1966); State v. Bishop, 90 Wash.2d 185, 580 P.2d 259 (1978).3 Historically, the doctrine of lesser included offenses evolved as an aid to the prosecution when it failed to prove all o......
  • State v. Johnson
    • United States
    • Washington Supreme Court
    • 15 Diciembre 1983
    ...something it does not believe true, and will hence not wish to infer in any event, is entirely redundant. While in State v. Bishop, 90 Wash.2d 185, 580 P.2d 259 (1978), we approved as permissive a much stronger presumption instruction framed in the language of the previous burglary statute,......
  • Request a trial to view additional results
1 books & journal articles
  • The Doctrine of Lesser Included Offenses
    • United States
    • Seattle University School of Law Seattle University Law Review No. 16-01, September 1992
    • Invalid date
    ...812 P.2d 86 (1991). 6. 90 Wash. 2d 443, 584 P.2d 382 (1978). 7. Id. at 447-48, 584 P.2d at 385. 8. State v. Bishop, 90 Wash. 2d 185, 191, 580 P.2d 259, 261 (1978) (quoting State v. Roybal, 82 Wash. 2d 577, 583, 512 P.2d 718, 721 9. Workman, 90 Wash. 2d at 447-48, 584 P.2d at 385. Similarly,......

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