State v. Brown

• Court: Court of Appeals of Washington
• Parties: STATE OF WASHINGTON, Respondent, v. DAVID RAY BROWN, Appellant.
• Docket Number: 38749-6-III
• Decision Date: 23 February 2023

STATE OF WASHINGTON, Respondent,
v.
DAVID RAY BROWN, Appellant.

No. 38749-6-III

Court of Appeals of Washington, Division 3

February 23, 2023

UNPUBLISHED OPINION

Fearing, J.

David Brown appeals his conviction for second degree burglary. He contends his trial counsel performed deficiently when failing to offer a lesser included offense jury instruction for second degree trespass. We reject his contention because trespass is not a lesser included offense of burglary.

FACTS

This prosecution arises from the presence of David Brown, on March 23, 2020, on the business premises of Automotive Specialties, a north Spokane used car dealership. On that day, Automotive Specialties was in the process of moving its business location two blocks hence.

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Lyle Click, a tow truck operator, arrived at Automotive Specialties on the morning of March 23 to assist the dealership with moving its inventory to the new sales lot. Click noticed a person inside a truck. The truck sat on a tennis court surrounded by a twelve-foot-high gated fence. Automotive Specialties stored some of its car inventory inside the fenced area. Click blocked the outside of the gate with his truck so that the person seated in the other truck could not escape the premises. The interloper inside the other truck was David Brown. Brown owned the other truck.

A trailer owned by Gregor Klante was hitched to the truck occupied by David Brown. Klante operated a separate dealership that shared space with Automotive Specialties. Lyle Click phoned Klante, who arrived fifteen minutes later. Before Klante's arrival, Brown barked at Click to move his truck so that he could drive the truck he occupied through the gate. Brown threatened to ram Click's truck. Brown insisted that he owned the trailer, although Click knew otherwise.

Greg Klante appeared at Automotive Specialties minutes later. Automotive Specialists detailer Gary Litzenberger arrived at the location near the same time as Klante appeared. Litzenberger noticed the presence of a different lock on the fence than the lock regularly used by the dealership. The interloper, David Brown, insisted that he owned the business property. Litzenberger insisted that Brown open the gate. Brown ignored Litzenberger. Litzenberger telephoned Automotive Specialties general manager John Rostollan, who arrived five minutes later.

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John Rostollan, while employing colorful language, asked the intruder, David Brown, to explain his presence. Rostollan insisted that Brown unlock the gate. After hesitation, Brown opened the gate. Brown insisted that he owned the trailer to which he had hooked his truck. Rostollan demanded that Brown unhook the trailer. Brown eventually conceded he did not own the trailer and released the trailer from his truck.

James Stewart, a Spokane Police Department detective, responded to Automotive Specialties business property. Stewart saw red paint on Brown's hands, although the detective discovered no paint cans within the vicinity. Someone had spray-painted the trailer red within the last hour because the paint still felt new. A remote control for the trailer's winch, which had been locked in a box inside the trailer, was found in Brown's truck. Stewart found a crowbar in Brown's truck.

PROCEDURE

The State of Washington charged David Brown with second degree burglary. At the close of trial, Brown did not propose any jury instruction permitting the jury to convict him of a lesser included offense. Nevertheless, during closing arguments, counsel for Brown argued that the State failed to prove beyond a reasonable doubt that Brown committed second degree burglary. Brown's counsel asserted that Brown committed second degree trespass, not second degree burglary. The jury found David Brown guilty of second degree burglary.

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LAW AND ANALYSIS

On appeal, David Brown contends his trial counsel performed ineffectively by failing to propose a jury instruction allowing the jury to convict him of second degree trespass as a lesser included offense of the charged crime: second degree burglary. This contention assumes that second degree trespass constitutes a lesser included offense of second degree burglary. We conclude that second degree trespass does not comprise a lesser included offense. Therefore, trial counsel did not perform deficiently. We first review principles that apply to claims of ineffective assistance of counsel, before analyzing whether trespass is a lesser included offense of burglary.

The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution guarantee effective assistance of counsel. State v. Classen, 4 Wn.App. 2d 520, 535, 422 P.3d 489 (2018). To prevail on an ineffective assistance of counsel claim, a defendant must prove that (1) his or her counsel performed deficiently, and (2) counsel's deficient performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Classen, 4 Wn.App. 2d 520, 535 (2018). Performance is deficient if it falls below an objective standard of reasonableness. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011). To show prejudice, a defendant must demonstrate a reasonable possibility that, but for counsel's purportedly deficient conduct, the outcome of the proceeding would have differed. State v. Classen, 4 Wn.App. 2d 520, 535 (2018).

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David Brown's appeal illustrates the overlapping nature of the two elements comprising an ineffective assistance of counsel claim. If second degree trespass does not constitute a lesser included offense of second degree burglary, the trial court would not have given a lesser offense jury instruction such that Brown can show no prejudice. If trespass does not act as a lesser included offense of burglary, trial counsel also did not perform ineffectively by failing to propose a...