State v. Busev
| Decision Date | 30 July 2015 |
| Docket Number | No. 31908-3-III,31908-3-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. ROMAN S. BUSEV, Appellant. |
FEARING, J. — A jury convicted Roman Busev of second degree burglary for entering the Pasco Walmart store in violation of a court order. On appeal, Busev argues that the trial court violated the separation of powers doctrine when it allowed the jury to find unlawful entry, an element of burglary, based on violation of an earlier court order. He also argues that the State did not prove the crime because Walmart never excluded him from the premises and the exclusion from the premises by the premises owner or occupier, rather than a court order, is essential for a conviction. We disagree with both contentions and affirm the conviction.
On April 29, 2011, Roman Busev pled guilty, in Pasco Municipal Court, to shoplifting. The judgment imposed a jail sentence of 364 days, with credit for 64 days served and the remaining 300 days suspended. The sentence included a probation term of two years and required that, as a condition of probation and suspended jail time, Busev not enter any Walmart. The sentence read: "Stay out of Walmart." Exhibit (Ex.) at 1. Presumably the Pasco charges related to conduct in the Pasco Walmart store.
On September 27, 2012, Roman Busev entered the Pasco Walmart store. Busev pulled a bottle of liquor from the store's shelf and exited the store without paying for the bottle. A Walmart employee phoned the Pasco Police Department, and a member of the department arrested Busev for shoplifting.
The State of Washington charged Roman Busev with second degree burglary in violation of RCW 9A.52.030. On the day of trial, Busev moved in limine to exclude the April 2011 Pasco Municipal Court judgment and sentence. Busev argued that his entering the Walmart store on September 27, 2012 constituted a probation violation, but did not support a burglary charge. He argued that Walmart had never disinvited him from the store and the lack of consent of the building owner, not the State's or the court's lack of consent, drives the burglary statute's definition of a person who is not licensed, invited or otherwise privileged to enter the store.
The trial court concluded that the motion in limine constituted a motion to dismiss and thus was untimely. The trial court denied the motion. The trial court admitted the April 2011 judgment and sentence as exhibit 1 during trial.
During trial, a Walmart employee testified that anyone subject to a court order precluding him from entry of a Walmart store would not be welcome in the store. After the State rested its case, Roman Busev moved to dismiss on the ground that the April 2011 judgment and sentence was insufficient to show Busev entered Walmart unlawfully. The trial court denied the motion to dismiss.
The trial court instructed the jury that:
Clerk's Papers (CP) at 28. The court also instructed the jury:
A person enters or remains unlawfully in or upon premises when he or she is not then licensed, invited, or otherwise privileged to so enter or remain.
CP at 29. No jury instruction referenced the Pasco Municipal Court order precluding Roman Busev from entering a Walmart. The jury found Busev guilty of burglary in the second degree.
LAW AND ANALYSIS
Roman Busev identifies only one issue on appeal: whether the trial court violated the separation of powers doctrine when it allowed the jury to find unlawful entry based on Busev's violation of an earlier court order. Nevertheless, he conflates this argument with argument on a distinct issue: whether the State presented sufficient evidence to convict him of the crime of burglary when it presented evidence of a court order of exclusion from Walmart but no evidence that Walmart disinvited him from the store. We address the two issues separately.
We avoid deciding constitutional questions when a case may be fairly resolved on other grounds. Cmty. Telecable of Seattle, Inc. v. City of Seattle, Dep't of Exec. Admin., 164 Wn.2d 35, 41, 186 P.3d 1032 (2008). Therefore, we address Roman Busev's sufficiency of evidence argument first.
Sufficiency of Evidence
Roman Busev does not expressly argue that the State presented insufficient evidence to convict him of second degree burglary. Nor does he list insufficiency of evidence as one of the issues on appeal. Nevertheless, Busev impliedly forwards this argument when he contends violation of a court order does not constitute a predicate act involving unlawful entry into a building and assigns error to the trial court's refusal to grant his motion to dismiss. Because Busev raised the argument below, because the argument falls within other arguments asserted on appeal, because the State responded tothe argument, and because Busev cites authority in support of this contention, we address the argument anyway. This court will reach the merits of an issue if the issue is reasonably clear from the brief, the opposing party has not been prejudiced, and this court has not been overly inconvenienced. State v. Grimes, 92 Wn. App. 973, 978, 966 P.2d 394 (1998).
Under RCW 9.94A.700(5)(e), the legislature has authorized the trial court to impose crime-related prohibitions. State v. Zimmer, 146 Wn. App. 405, 413, 190 P.3d 121 (2008). The Pasco Municipal Court presumably exercised this authority when it revoked, in April 2011, Roman Busev's privilege to enter Walmart. The State presented no evidence that Walmart informed Roman Busev that he was unwelcome at its store. We must decide if the court order suffices to convict Busev of second degree burglary.
RCW 9A.52.030(1). Elsewhere "unlawful entry" or "remain[ing]" in a building is circumscribed as:
A person "enters or remains unlawfully" in or upon premises when he or she is not then licensed, invited, or otherwise privileged to so enter or remain.
RCW 9A.52.010(5). The latter statute does not expressly define unlawful entry as including the violation of a court order. The definition of unlawful entry applies to firstdegree burglary and residential burglary in addition to second degree burglary. RCW 9A.52.020 and .025.
Burglary has two elements: (1) the accused enters or remains unlawfully in a dwelling other than a vehicle with (2) an intent to commit a crime against a person or property therein. State v. Steinbach, 101 Wn.2d 460, 462, 679 P.2d 369 (1984); State v. Stinton, 121 Wn. App. 569, 573, 89 P.3d 717 (2004); State v. McDaniels, 39 Wn. App. 236, 239, 692 P.2d 894 (1984). The State's evidence must independently satisfy each element. State v. Stinton, 121 Wn. App. at 573.
Roman Busev impliedly concedes the second element of the crime. He entered the Walmart store with intent to steal liquor, and thus theft serves as the predicate crime. He argues the State did not satisfy the first element of the crime since he did not enter the store unlawfully.
To establish an unlawful entry, the State must introduce evidence the entrant was not then licensed, invited, or otherwise privileged to so enter or remain. State v. Kilponen, 47 Wn. App. 912, 918, 737 P.2d 1024 (1987). Walmart is a retail store open to the public. A lawful entry of a store, even one accompanied by nefarious intent, is not by itself a burglary. State v. Allen, 127 Wn. App. 125, 137, 110 P.3d 849 (2005).
[A] person whose license, invitation, or privilege to enter or remain in a retail establishment has never been withdrawn and who enters the store through a public entrance while the store is open for business is licensed, invited, or otherwise privileged to enter or remain, even if he intends from the start to shoplift or forms that intent while inside the store.
State v. Klimes, 117 Wn. App. 758, 760, 73 P.3d 416 (2003), disapproved on other grounds by Allen, 127 Wn. App. 125. Nevertheless, a store owner's notice to an individual that the individual is banned from the store leads to an unlawful entry if the individual returns. State v. Kutch, 90 Wn. App. 244, 249, 951 P.2d 1139 (1998).
The parties focus attention on two decisions addressing convictions for burglary: State v. Stinton, 121 Wn. App. 569 and State v. Wilson, 136 Wn. App. 596, 150 P.3d 144 (2007). State v. Stinton supports the State's position, but only to a limited extent. The court held that violation of a protection order provision can serve as the predicate crime for residential burglary. In other words, violation of a court order satisfies element two of the crime. Matthew Stinton conceded the unlawful entry element of the crime, so this court did not analyze whether violation of a court order suffices for element one of burglary.
Roman Busev distinguishes State v. Stinton on the ground that violating a no-contact order is a crime, RCW 9A.46.080, whereas violating a community custody condition is not a criminal offense. RCW 9.94A.737. This difference is important when addressing the intent to commit a crime element of burglary. Nevertheless, the element of unlawful entry does not require that entry be criminal. An entry that "is not then licensed, invited, or otherwise privileged" suffices under RCW 9A.52.010(5).
In State v. Wilson, 136 Wn. App. 596, this court affirmed the trial court's dismissal of burglary charges against Gregory Wilson. A district court entered an order prohibiting Wilson from contact with his girlfriend. The order...
To continue reading
Request your trial