State v. Gear

• Decision Date: 08 September 1981
• Docket Number: No. 4049-II,4049-II
• Citation: 30 Wn.App. 307,633 P.2d 930
• Parties: The STATE of Washington, Respondent, v. Larry Lee GEAR, Appellant.
• Court: Washington Court of Appeals

Page 307

30 Wn.App. 307

633 P.2d 930

The STATE of Washington, Respondent, v. Larry Lee GEAR, Appellant.

No. 4049-II.

Court of Appeals of Washington, Division 2.

Sept. 8, 1981.

Review Denied Dec. 3, 1981.

John L. Farra, Aberdeen, for appellant.

Curtis M. Janhunen, Prosecutor, Michael G. Spencer, Deputy Pros. Atty., Montesano, for respondent.

PETRICH, Judge.

Larry Gear appeals his conviction of second degree burglary and the subsequent determination of his status as a habitual criminal pursuant to RCW 9.92.090. ¹ We affirm his burglary conviction, finding substantial evidence in support thereof, but vacate the habitual criminal determination on the ground that the State failed to make the requisite showing of the voluntariness of defendant's prior pleas of guilty.

The essential facts of this case are as follows. In the early hours of August 30, 1978, three police officers responded to an electronic burglar alarm in an Aberdeen office building. Soon after their arrival at the scene, one of the officers detected someone moving about inside the unlighted building. Receiving no response after knocking on the doors and windows of the building, and commanding the intruder to come out, two officers climbed through an unlocked window. During their search of the building, the officers noticed footprints on bookshelves below a hatch leading to a dark crawl space above the ceiling. In the crawl space they found defendant crouching down and fumbling with something. After placing defendant under arrest, one of the officers climbed into the area where Gear had been, and discovered a sheath knife, small screwdriver, and a pocketpen flashlight.

At defendant's trial held in November, 1978, the officers testified to the circumstances preceding his arrest. An owner of the building also testified that no one other than an employee had permission to be in the building at that hour. There was no explicit testimony, however, indicating that defendant was not an employee, and thus lacked permission to enter or remain on the premises. Although defendant had no keys to the building, there was no evidence of forced entry. A jury found defendant guilty of second degree burglary, and on appeal, as in his motion to dismiss below, defendant contends that there was not substantial evidence that his entering or remaining on the premises was "unlawful." See RCW 9A.52.030. Following his conviction for the instant offense, a habitual criminal proceeding was held before a jury. The jury found that defendant was a habitual criminal on the basis of two prior convictions based on a plea of guilty entered in California on August 2, 1976, and a plea of guilty to attempted second degree burglary entered December 1, 1978 in Grays Harbor County. At the habitual criminal proceeding, the State introduced no evidence showing that the two plea-based convictions were obtained through use of voluntarily and intelligently made pleas of guilty. Defendant made no objection below on this ground, raising the issue of voluntariness of the prior pleas for the first time on appeal.

The first issue we address is whether defendant's conviction of second degree burglary is supported by substantial evidence.

A person is guilty of burglary in the second degree if, with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a building other than a vehicle. RCW 9A.52.030. The element of intent may be inferred unless the accused satisfactorily explains to the trier of fact that his entering or remaining was done without criminal intent. See RCW 9A.52.040. In a criminal case, the test for determining the sufficiency of the evidence is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 334, 99 S.Ct. 2781, 2797, 61 L.Ed.2d 560 (1979); accord, State v. Green, 94 Wash.2d 216, 616 P.2d 628 (1980). Any challenge to the sufficiency of the evidence admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom. State v. Holbrook, 66 Wash.2d 278, 401 P.2d 971 (1965).

In the present case, defendant contends that the State's failure to elicit express testimony that he was not in fact an employee who was present in the building with the permission of the owners was tantamount to a failure to prove that his entering or remaining therein was "unlawful." We cannot accept this argument. Defendant's entering or remaining in the building was "unlawful" because of his apparent intent to commit a crime therein. See State v. Gregor, 11 Wash.App. 95, 521 P.2d 960 (1974). Not only may defendant's criminal intent be statutorily inferred, in the absence of an explanation satisfactory to the trier of fact, as mentioned above, but under the facts of the present case, it would have been difficult for the jury to infer otherwise. Placed before the jury was undisputed evidence that defendant (1) was found hiding in a dark crawl space above the ceiling; (2) a burglar alarm had been set off; (3) the lights were out; (4) defendant disobeyed police orders to exit the building; (5) it was approximately 2 a. m.; (6) defendant had no keys to the building, and (7) a knife, pocketpen flashlight and screwdriver were recovered from defendant's hiding place. From this evidence and reasonable inferences of intent therefrom, we hold that any rational trier of fact could have found the essential elements of the crime, including the element of "unlawfulness," beyond a reasonable doubt.

The next and final issue we need consider is whether the failure of the State to affirmatively prove the voluntariness of defendant's prior guilty pleas, even though defendant raised no objection on this ground at the time of the habitual criminal proceeding, requires a remand for a determination of the voluntariness of those pleas. In State v. Holsworth, 93 Wash.2d 148, 607 P.2d 845 (1980), which was decided while review of this case was pending, our state Supreme Court held, based on principles enunciated in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and...