State v. Chelly
| Decision Date | 15 September 1982 |
| Docket Number | No. 9191-3-I,9191-3-I |
| Citation | 32 Wn.App. 916,651 P.2d 759 |
| Parties | STATE of Washington, Respondent, v. Hilton CHELLY, Defendant, Phillip Lee Stewart, Appellant, and John Luke Frost, and each of them, Defendant. . Filed |
| Court | Washington Court of Appeals |
Michael Filipovic, Rosemary Bordlemay, Seattle, for appellant.
Norman K. Maleng, King County Pros. Atty., Chris Washington, Michael A. Walsh, William Harris, Deputy Pros. Attys., Seattle, for respondent.
Shortly after 2 a. m. on February 13, 1980, Yuen Chun Gee walked through the parking lot in front of the Lotus Food Store in Seattle and saw a "blue/black" Lincoln Continental parked with its back toward the store window. The window was broken, and Gee noticed three people putting things into the car's trunk. He heard one of them say, "Get more cigarettes and liquor and wine." Gee summoned police, who soon apprehended appellant Phillip Lee Stewart and his two codefendants, Chelly and Frost, in a blue Lincoln Continental. Gee recognized the car as the same one he had seen earlier, but could not make a positive identification of the men he saw loading the car's trunk. Cases of beer and wine, cigarettes, and loose papers found in the car were identified as being from the Lotus Food Store.
Stewart did not take the stand at trial. Codefendant Chelly testified that on the night in question he, Frost, and Stewart had purchased alcohol from a stranger who put it in the trunk of Chelly's car, a Lincoln Continental. Chelly opened the trunk by means of a button inside the car, and did not actually observe the stranger place anything in the trunk. The trio then proceeded to the Lotus Food Store parking lot where they were stopped by police.
Stewart was convicted by jury of second degree burglary. His first assignment of error on appeal is that the information by which he was charged failed to inform him specifically of the underlying crime he intended to commit while in the store. Because Stewart did not object to the sufficiency of the information nor file a motion for a bill of Objections to the sufficiency or definiteness of an information must be made before the trial commences. If delayed until the beginning of the trial, they are not timely. Seattle v. Morrow, 45 Wash.2d 27, 273 P.2d 238 (1954).
particulars, pursuant to CrR 2.1(e), he has waived this issue on appeal and we will not consider it. As our Supreme Court has stated
State v. Thomas, 73 Wash.2d 729, 733, 440 P.2d 488 (1968).
Stewart next assigns error to the following instructions given by the trial court:
A person commits the crime of burglary in the second degree when he or she enters or remains unlawfully in a building with intent to commit a crime against a person or property therein.
Instruction 4.
To convict the defendant Phillip Lee Stewart of the crime of burglary in the second degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 13th day of February, 1980, the defendant entered or remained unlawfully in a building;
(2) That the entering or remaining was with intent to commit a crime against a person or property therein; and
(3) That the acts occurred in King County, Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
Instruction 7. The jury was also instructed that "[t]heft is a crime." Instruction 11.
Stewart argues that these instructions were erroneous for three reasons: (1) if theft was the underlying crime in question, then it is an element of the crime and must be identified in the instructions, (2) the failure to identify the underlying crime may have resulted in a non-unanimous Stewart first assigns error to the trial court's failure to instruct the jury on the elements of theft, arguing that if theft is the underlying crime relied upon by the State, then it is an element of burglary.
verdict, and (3) possessing stolen property was a lesser included offense of burglary and the jury should have been so instructed. We shall discuss these contentions in order.
We disagree. The State is not required to charge and prove intent to commit a particular crime, but only the presence of criminal intent at the time of illegal entry. In Instruction 4, the trial court properly instructed the jury on the elements of burglary, i.e., (1) the unlawful entering or remaining in a building, and (2) with intent to commit a crime therein. This instruction comports with the statutory definition of burglary. 1 Had the legislature intended to include the underlying crime as one of the elements of burglary, it would surely have done so. Indeed, the underlying crime, if committed, may be charged, and the defendant punished therefor, separately. 2 We are satisfied that the State need only prove entry with criminal intent rather than intent to commit a particular crime.
Good reason exists for this conclusion. Knowledge of criminal intent usually resides exclusively in the mind of the defendant. He may unlawfully enter a building with the intent to commit a certain crime, and ultimately commit a different crime, or no crime at all. He is nonetheless guilty of burglary. In either case, the State would be hard pressed to prove entry with intent to commit a crime if it were required to specify exactly which of several crimes available to the defendant he intended to commit. Such a requirement Stewart next claims that the failure to instruct on the underlying crime which he intended to commit may have caused the jury to return a non-unanimous verdict. The jury could have concluded from the evidence that the underlying crime was theft, robbery, or possessing stolen property. Thus, he argues, it is possible that the jurors did not agree as to which crime Stewart intended to commit.
would seriously weaken the enforcement of burglary laws. Of course, in cases where the specific crime intended is made obvious by surrounding circumstances, the better practice would be to identify that crime. Nonetheless, the trial court did not err in failing to instruct on the elements of theft.
There is no question that a jury must unanimously find each element of a crime proven beyond a reasonable doubt. State v. Badda, 63 Wash.2d 176, 385 P.2d 859 (1963). In a burglary case, the jury must find the presence of criminal intent unanimously. However, that is a far cry from requiring unanimity as to the underlying crime. Inasmuch as we have concluded that the identity of the underlying crime is not an element of burglary, unanimity as to it is not required. So long as the jury unanimously finds that entry was effected with criminal intent, we are satisfied that that element has been met.
Stewart's argument is particularly unpersuasive here where the underlying crime was clearly theft. The facts simply do not support his contention that a reasonable juror might have found the underlying crime to be robbery or possessing stolen property.
Stewart's final assignment of error concerns the trial court's failure to give his requested instruction on a lesser included offense; i.e., possession of stolen property. His theory is that the crucial evidence in this case, his possession of stolen property, was evidence of both theft and his intent to commit a crime, an element of burglary. Because possession of stolen property is a lesser included offense of theft, State v. Alford, 25 Wash.App. 661, 611 P.2d 1268 (1980), aff'd sub nom. State v. Claborn, 95 Wash.2d 629, 628 A defendant is entitled to an instruction on a lesser included offense if (1) each of the elements of the lesser crime is an element of the offense charged, and (2) the evidence supports an inference that the lesser crime was committed. State v. Workman, 90 Wash.2d 443, 584 P.2d 382 (1978). The elements of second degree burglary have been listed earlier in this opinion. The elements of possessing stolen property are possession of stolen property with knowledge that it is stolen. RCW 9A.56.140. The two crimes share no element in common.
P.2d 467 (1981), and theft was the underlying crime upon which the burglary rested, Stewart argues that possession of stolen property is, under these facts, a lesser included offense of burglary.
Stewart urges us to apply the so-called "inherent relationship" test to find a lesser included offense. Under this approach, a court considers the evidence presented to determine if an inherent relationship exists between the greater crime and the one alleged to be a lesser included offense. United States v. Johnson, 637 F.2d 1224 (9th Cir. 1980); United States v. Stolarz, 550 F.2d 488 (9th Cir.), cert. denied, 434 U.S. 851, 98 S.Ct. 162, 54 L.Ed.2d 119 (1977). Stewart argues that under this theory, possessing stolen property must be a lesser included offense of burglary since his possession of the stolen property was the only direct evidence to connect him with the charged crime.
We decline to apply the "inherent relationship" test here. As stated in United States v. Johnson, supra at 1238-39, quoting from United States v. Whitaker, 144 U.S.App.D.C. 344, 447 F.2d 314, 319 (1971), the offenses must
be so related that in the general nature of these crimes, though not necessarily invariably, proof of the lesser offense is necessarily presented as part of the showing of the commission of the greater offense.
We do not believe that possession of stolen property is so closely related to burglary as to make it a lesser included offense; the trial court properly refused to give Stewart's lesser included offense instruction.
Affirmed.
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State v. Johnson
...( see State v. Johnson, 32 Wash.App. 1037 (1982); State v. MacReady, 32 Wash.App. 928, 651 P.2d 752 (1982); State v. Chelly, 32 Wash.App. 916, 651 P.2d 759 (1982) (defendant Stewart); State v. Kilpatrick, 32 Wash.App. 1048 (1982)) and we granted defendants' petitions for review. The cases a......
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State v. MacReady, 8736-3-I
...crime, the jury should have received an instruction on the elements of theft. We rejected an identical contention in State v. Chelly, 32 Wash.App. 916, 651 P.2d 759 (1982). The judgment is JAMES, J., concurs. RINGOLD, Judge (dissenting). For the reasons expressed herein and in my dissent in......
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...aff'd sub nom. State v. Claborn, 95 Wash.2d 629, 628 P.2d 467 (1981), has been cited for that proposition. See State v. Chelly, 32 Wash.App. 916, 920, 651 P.2d 759 (1982), aff'd sub nom. State v. Johnson, 100 Wash.2d 607, 674 P.2d 145 (1983). The issue in Alford was whether evidence of taki......
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