State v. Brown
| Decision Date | 28 March 1988 |
| Docket Number | No. 18868-2-I,18868-2-I |
| Citation | 50 Wn.App. 873,751 P.2d 331 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Earl Thomas BROWN, Jr., Appellant. |
Julie A. Kesler, Washington Appellate Defender, Seattle, for appellant Earl Thomas Brown, Jr.
Norm Maleng, King County Pros. Atty., Susan Noonan, Seattle, for respondent State of Wash.
Earl Thomas Brown appeals from his conviction of first degree criminal trespass.
On the evening of April 29, 1985, police responded to an alarm at the Puget Sound Tire Company where Brown was located in the fenced area crouched down behind a stack of tires. The Puget Sound Tire Company consists of a main building and a large fenced area used to enclose large truck tires. The manager of Puget Sound Tire arrived at the scene and confirmed that he had locked up the area at 6:30 that evening and that Brown did not have permission to be in the fenced area. Brown was charged with second degree burglary. The jury found Brown guilty of the lesser included offense of criminal trespass in the first degree.
The sole issue on appeal is whether the fenced area of Puget Sound Tire Company constitutes a "building" within the meaning of the first degree criminal trespass statute, RCW 9A.52.070. The primary objective of statutory construction is to carry out the intent of the Legislature. Bellevue Fire Fighters Local 1604 v. Bellevue, 100 Wash.2d 748, 751, 675 P.2d 592 (1984), cert. den'd, 471 U.S. 1015, 105 S.Ct. 2017, 85 L.Ed.2d 299 (1985); Christie-Lambert Van & Storage Co. v. McLeod, 39 Wash.App. 298, 693 P.2d 161 (1984). Where intent is not clear from the statute's language, courts will look to the legislative history. In re Marriage of Konzen, 103 Wash.2d 470, 475, 693 P.2d 97, cert. den'd, 473 U.S. 906, 105 S.Ct. 3530, 87 L.Ed.2d 654 (1985); Bellevue, 100 Wash.2d at 754, 675 P.2d 592; McLeod, 39 Wash.App. at 302, 693 P.2d 161.
An examination of the first and second degree criminal trespass statutes before and after their amendment in July 1979 is instructive.
Formerly, criminal trespass in the first degree provided:
(1) A person is guilty of criminal trespass in the first degree if he knowingly enters or remains unlawfully in a building or on real property adjacent thereto or upon real property which is fenced or otherwise enclosed in a manner designed to exclude intruders.
(2) Criminal trespass in the first degree is a gross misdemeanor.
(Emphasis added.) Former RCW 9A.52.070.
The former statute for criminal trespass in the second degree stated:
(1) A person is guilty of criminal trespass in the second degree if he knowingly enters or remains unlawfully in or upon premises of another.
(2) Criminal trespass in the second degree is a misdemeanor.
Criminal trespass in the first degree now provides:
(1) A person is guilty of criminal trespass in the first degree if he knowingly enters or remains unlawfully in a building.
(2) Criminal trespass in the first degree is a gross misdemeanor.
RCW 9A.52.070.
Criminal trespass in the second degree now provides:
(1) A person is guilty of criminal trespass in the second degree if he knowingly enters or remains unlawfully in or upon premises of another under circumstances not constituting criminal trespass in the first degree.
(2) Criminal trespass in the second degree is a misdemeanor.
RCW 9A.52.080.
In amending the first degree criminal trespass statute, language regarding "adjacent real property" and "fenced" or "enclosed" real property was specifically repealed. Despite the Legislature's attempt to clarify the statute, there is still confusion regarding what constitutes a "building". Under the chapter dealing with burglary and trespass, RCW 9A.52, "premises" includes "any building, dwelling, structure used for commercial aquaculture, or any real property". "Premises", as it is used in the second degree criminal trespass statute, encompasses a broad range of structures and property. First degree criminal trespass may only occur in a "building"; however, the term "building" is not defined under this chapter.
The State relies on the broad definition of "building" found in the definitional section of Title 9A in the Washington Criminal Code. It provides:
In this title unless a different meaning plainly is required:
....
(5) "Building", in addition to its ordinary meaning, includes any dwelling, fenced area, vehicle, railway car, cargo container, or any other structure used for lodging of persons or for carrying on business therein, or for the use, sale or deposit of goods; each unit of a building consisting of two or more units separately secured or occupied is a separate building;
RCW 9A.04.110.
The word "building" was expansively defined in State v. Flieger, 45 Wash.App. 667, 726 P.2d 1257 (1986), in the context of burglary statutes. See also State v. Couch, 44 Wash.App. 26, 720 P.2d 1387 (1986); State v. Lira, 45 Wash.App. 653, 726 P.2d 1015 (1986); and State v. Tyson, 33 Wash.App. 859, 658 P.2d 55 (1983). These cases apply only to the burglary statutes; they do not apply to the criminal trespass statutes. House Judiciary Committee Bill Files 307, at 5 (1979).
There is no doubt regarding the meaning of "building" in light of the report language accompanying the 1979 amendments. It provides in part:
The effect of adoption of the amendments contained in these two sections would be to narrow the scope of the gross misdemeanor first degree criminal trespass offense to trespasses in a building in its ordinary sense. The reason for the necessity of the odd appearing phrase "other than a fenced area" is because of the definition of "building" in RCW 9A.04.110(5) which includes fenced areas for purposes of using the term "building" elsewhere in the criminal code, in particular in such areas as arson or burglary. Moreover, all other types of trespasses other than in a building would be covered by the second degree criminal trespass offense graded at the misdemeanor level.
(Emphasis added.) House Judiciary Committee Bill Files 307, at 5.
The report language goes on to explain the purpose of the amendments as follows:
The difficulty with present law is that the existing language which adds to trespasses in a building trespasses on various adjacent property or fenced property clearly overlaps with the definition of "premises" which forms the coverage base of the second degree offense. As such, this means that proof of the same elements of an offense could produce convictions of either a gross misdemeanor or a misdemeanor offense depending on which degree of trespass the prosecutor chooses to charge.
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