State v. Collins
| Decision Date | 10 March 1988 |
| Docket Number | No. 54115-9,54115-9 |
| Citation | 110 Wn.2d 253,751 P.2d 837 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Petitioner, v. John F. COLLINS, Respondent. |
Michael Sullivan, Pacific Co. Prosecutor, Douglas E. Goelz, Deputy Co. Prosecutor, South Bend, for petitioner.
John Wolfe, South Bend, for respondent.
This case presents the question whether the element of "entering or remaining unlawfully" in our first degree burglary statute, RCW 9A.52.020, is satisfied where the accused receives an invitation to the premises which is not expressly qualified as to area or purpose, and commits a crime while on the premises. We hold that, on a case by case basis, an implied limitation on the scope of an invitation or license may be recognized. We find such a limitation in the subject case. We reverse.
On March 13, 1985, John F. Collins appeared at the door of Charlotte Dungey, 72. Mrs. Dungey's mother-in-law, Ellah Dungey, 84, answered the door. Collins asked if a Mr. Thatcher lived in the house. Ellah answered that he did not, and asked her daughter-in-law if the Thatchers lived nearby. Charlotte knew the Thatchers had previously lived in the house.
Noticing that Collins had a slip of paper with the incorrect address and a phone number on it, Charlotte said Collins called the number and apparently received no answer. He then grabbed Charlotte by the arm and Ellah by the wrist. He dragged them into a bedroom and threw them on the bed. While he pinned Charlotte to the bed with his right leg, he pulled off Ellah's panty hose and inserted a finger in her vagina. During the struggle, Charlotte broke free and escaped to the kitchen. Collins caught her and dragged her back into the bedroom. In the struggle with Charlotte, he dislocated her shoulder.
"Wouldn't you like to call him, use the phone?" She then turned and went into the front room with Collins following her. She picked up the receiver and handed it to him.
Collins was tried and convicted of "Rape in the Second Degree, Assault in the Second Degree and Burglary in the First Degree". The trial court determined the standard sentencing range for the offenses to be 46 to 61 months based in part on its conclusion that the rape and the burglary were not "[s]eparate crimes encompassing the same criminal conduct", and so should not be treated as a single crime for the purposes of calculating Collins's offender score under former RCW 9.94A.400. Laws of 1984, ch. 209, § 25, at 1074. Collins was given a maximum term of 10 years.
The Court of Appeals reversed the burglary conviction on the ground that the element of "enters or remains unlawfully" was not proved. The court did not consider the sentencing issue because of its disposition of the burglary conviction.
Collins remained unlawfully on the premises, because he exceeded the scope of his invitation. Collins was invited to use the telephone. Once that purpose was accomplished, his license expired, and by remaining in the house and committing crimes, he committed first degree burglary.
Burglary in the first degree is defined in RCW 9A.52.020(1) as follows:
A person is guilty of burglary in the first degree if, with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a dwelling and if, in entering or while in the dwelling or in immediate flight therefrom, the actor or another participant in the crime (a) is armed with a deadly weapon, or (b) assaults any person therein.
The term "enters or remains unlawfully" is defined in RCW 9A.52.010(3) as follows:
A person "enters or remains unlawfully" in or upon premises when he is not then licensed, invited, or otherwise privileged to so enter or remain.
The trial court found that the "unlawfully remaining" element of the crime was proved by evidence that Collins formed the intent to commit the assault and rape, once he had gained entry to the house. 1 In Verbatim Report of Proceedings, at 77 the trial court stated:
So I'm going to find that you went into the building lawfully, upon invitation, that while you were lawfully in the building you--your mind's purpose, or your purpose, changed to one of an unlawful nature, an intent to either rape or to assault, and that constitutes unlawfully remaining within the building under the context of RCW 91.50.020 [sic ].
The trial court relied on State v. Gregor, 11 Wash.App. 95, 521 P.2d 960 (1974) for the proposition that the element of unlawfully remaining may be inferred from the intent to commit a crime on the premises. However, Gregor is not on point because it involved the former second degree burglary statute, RCW 9.19.020 (). That statute did not contain the "unlawfully remaining" element which is at issue here,but The trial court also relied on State v. Gear, 30 Wash.App. 307, 633 P.2d 930 (1981). Gear offers somewhat more support for the trial court's position. Defendant was accused of second degree burglary under 9A.52.030, which does contain the "remains unlawfully" element. The court in Gear states that:
required only that the defendant enter a dwelling "with intent to commit some crime therein ..."
Defendant's entering or remaining in the building was "unlawful" because of his apparent intent to commit a crime therein.
Gear, at 310, 633 P.2d 930. This suggests that the "remains unlawfully" element can be inferred from the State's successful showing of the separate element of intent to commit a crime. Gear, however, is distinguishable on its facts. The defendant was discovered hiding in a crawl space, in the dark, at 2 a.m. with a knife, a screwdriver and a flashlight. The burglar alarm had been set off and defendant had no keys to the building. When police ordered him out of the building, he at first refused. There was sufficient evidence, in other words, to support a finding of unlawful entry or remaining. The Gear court did not infer the "remains unlawfully" element solely from the defendant's criminal intent as the trial court purported to do here.
The Court of Appeals concluded that the "remains unlawfully" element could not be inferred from Collins's criminal intent, for two reasons. First, the court reasoned that to do so would make the "remains unlawfully" element superfluous. Since the Legislature is presumed not to do an unnecessary act, State v. Wanrow, 88 Wash.2d 221, 228, 559 P.2d 548 (1977), that element must have some content independent of the intent element. It therefore must require independent proof and cannot simply be inferred from intent. State v. Collins, 48 Wash.App. 95, 99, 737 P.2d 1050 (1987). Second, the court argued that inferring "remains unlawfully" from the showing of intent would transform every crime committed indoors into a burglary.
48 Wash.App. at 99, 737 P.2d 1050. The court derived these arguments primarily from People v. Carstensen, 161 Colo. 249, 420 P.2d 820, 821 (1966)
The trial court's reasoning, on the other hand, is supported by cases from other jurisdictions. The California rule has long been that the defendant's criminal intent upon entry may render that entry unlawful under the burglary statute. People v. Nunley, 168 Cal.App.3d 225, 214 Cal.Rptr. 82 (1985); People v. Deptula, 58 Cal.2d 225, 373 P.2d 430, 23 Cal.Rptr. 366 (1962); People v. Barry, 94 Cal. 481, 29 P. 1026 (1892). A number of states follow the California rule. See State v. Adams, 94 Nev. 503, 581 P.2d 868 (1978); State v. Baker, 183 Neb. 499, 161 N.W.2d 864 (1968).
We decline, however, to adopt the California rule preferring instead a case by case approach. While the formation of criminal intent per se will not always render the presence of the accused unlawful, that presence may be unlawful because of an implied limitation on, or revocation of, his privilege to be on the premises. 2
The State argues that Collins' remaining on the premises was unlawful for one or both of the following reasons. First, he exceeded the physical scope of his invitation into the house, which was limited to the front room only and did not include the bedrooms or any other part of the house. Second, he exceeded the scope of his invitation by exceeding the limited purpose of using the telephone.
The Court of Appeals held that the facts were insufficient to support a finding that the invitation to Collins was limited in scope, and therefore Collins did not "remain unlawfully" when he stayed for a purpose other than using the telephone.
The State also argues the victims invited Mr. Collins in for the limited purpose of using the telephone and he exceeded the scope of that consent by sexually assaulting the victims. However, the consent given by Charlotte was unqualified.
State v. Collins, 48 Wash.App. at 99, 737 P.2d 1050. In other words, the invitation was not expressly limited to a single purpose, and, since Collins' invitation was not limited in scope, he did not exceed that scope. The Court of Appeals does not separately consider the contention that Collins' invitation did not extend to the bedroom of the house, but its argument that Charlotte's invitation was unqualified disposes of this argument as well as the argument based on limited purpose.
The State relies on State v. Rio, 38 Wash.2d 446, 230 P.2d 308, cert. denied, 342 U.S. 867, 72 S.Ct. 106, 96 L.Ed. 652 (1951) to support its argument that Collins exceeded the physical scope of his privilege. In Rio, a farmhand lived in the owner's house, but was not allowed in certain areas of the house, including the bedrooms. He killed the owner in the owner's bedroom. Rio, however, does not dispose of this case. In Rio the defendant was a tenant with access only to his own premises and certain common areas. There was an express limitation which he exceeded. Here, Collins was a licensee, but no express limitations of the kind present in Rio were placed on his license.
The question, then, is whether an...
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