State v. Dugger, 40426

• Decision Date: 10 April 1969
• Docket Number: No. 40426,40426
• Citation: 75 Wn.2d 689,453 P.2d 655
• Parties: STATE of Washington, Respondent, v. Darrel DUGGER, Appellant.
• Court: Washington Supreme Court

Page 689

75 Wn.2d 689

453 P.2d 655

STATE of Washington, Respondent, v. Darrel DUGGER, Appellant.

No. 40426.

Supreme Court of Washington, Department 2.

April 10, 1969.

Erickson & Worthington, Harvey Erickson, Spokane, for appellant.

Willard A. Zellmer, Pros. Atty., Norman D. Brock, Deputy Pros. Atty., for respondent.

OTT, Judge. ^*

March 15, 1968, Darrel Dugger was found guilty of second degree burglary by a jury in Lincoln County. From entry of the judgment and sentence based upon the jury's verdict, Darrel Dugger has appealed.

Appellant asserts that there was a failure of proof of the crime of second degree burglary for the reason that there was no evidence of a forceful entry into the premises.

Esther Tolenen, a cook and waitress working at the Almira Hotel on August 30, 1967, the date of the alleged offense, testified, Inter alia, that (1) she came to work at noon and worked alone continuously until she closed the restaurant at about 10:30 p.m.; (2) there are 3 doors leading into the kitchen where the desk in which the cigar box containing the $580 allegedly stolen was kept; (3) it was possible for persons to pass through the kitchen from the cafe; and (4) the kitchen door leading to the alley was closed and locked by her between 10:30 and 10:45 that evening. The state's evidence further established that two persons saw appellant emerging from the enclosed walkway between the White Motor Garage and the Almira Hotel at approximately 10:15 p.m., and appellant appeared to them to have a small box in his hand; that the box containing the money was discovered missing the following day; that about 7:00 p.m. on August 30, appellant had indicated to Officer Clement, after making a payment on a debt, that he was then out of funds; and at approximately 2:00 a.m. August 31, appellant and his family left on a trip to Lewiston, Idaho after paying the babysitter an unspecified amount in cash.

The court instructed the jury in instruction No. 6 as follows:

You are instructed that 'breaking and entering' means the use of some force in effecting the entering. Even slight force, such as the unlocking of a door or the pushing open of a partly opened door, constitutes sufficient force to constitute breaking and entering; but if no force is used, such as the entry though an open door, then there is no breaking and entering.

It is a general rule that the elements of a crime may be proved by circumstantial evidence. It is well established in this state that the scope of an appellate review of the sufficiency of circumstantial evidence is limited to a determination of whether the state has produced Substantial evidence tending to establish circumstances from which the jury could reasonably infer the fact to be proved. State v. Myers, 65 Wash.2d 911, 400 P.2d 372 (1965); State v. Lewis, 55 Wash.2d 665, 349 P.2d 438 (1960); State v. Donckers, 200 Wash. 45, 93 P.2d 355 (1939). In so doing, the court does not weigh the evidence but merely examines its sufficiency. State v. Myers, Supra. Forceful entry (except into a dwelling house) is an essential element of the crime of second degree burglary. RCW 9.19.020. To convict appellant in the instant case, it was essential to prove his forcible entry through the alley door of the Almira Hotel.

The only evidence with reference to possible entry through the alley door at the time in question was furnished by the testimony of Mrs. Tolenen as follows:

Q. Did you close up that evening? A. Yes. Q. What time was that? A. It was after 10:30, probably about a quarter of 11:00. * * * Q. Was the door to the alley locked or unlocked while the cafe was open? A. It was unlocked. Q. Why? A. I don't know, especially, they go back and forth to the bowling alley that way. Q. Where are the garbage cans? A. The garbage cans are back there, too. * * * Q. Who uses the alley door? A. Well, we do when we empty garbage. That's the main use I have for it. Q. Are there other employees who use it? A. Mr. and Mrs. Gibson use it, I would imagine. * * * Q. On an ordinary day that alley door would be opened in the morning by Mrs. Gibson, wouldn't it? A. Yes. Q. And, it would be closed in the evening by you? A. Yes. Q. And, you closed it that night? A. Yes. Q. Is there any way to open that alley door from the alley after you have locked it? A. No.

An analysis of the above testimony establishes that there was a side door leading to the alley. This door was used by employees and others. It was unlocked in the morning and locked in the evening in question at approximately 10:45. There were no other witnesses presented by the state who testified whether the kitchen door to the alley was open or closed during the day in question, nor whether it was customarily kept open or closed. There were other...