State v. Howe

• Court: Washington Supreme Court
• Writing for the Court: UTTER; Pekelis; DORE, C.J., BRACHTENBACH, DOLLIVER, DURHAM, ANDERSEN, SMITH and GUY, JJ., and CALLOW
• Citation: State v. Howe, 116 Wn.2d 466, 805 P.2d 806 (Wash. 1991)
• Decision Date: 28 February 1991
• Docket Number: Nos. 57133-3,57164-3 and 57201-1
• Parties: , 17 A.L.R.5th 881 The STATE of Washington, Petitioner, v. John HOWE, III, Respondent. The STATE of Washington, Respondent, v. Michael JENSEN, Petitioner. The STATE of Washington, Petitioner, v. Michael James WALSH, Respondent. En Banc

Page 466

116 Wn.2d 466

805 P.2d 806, 17 A.L.R.5th 881

The STATE of Washington, Petitioner, v. John HOWE, III, Respondent.

The STATE of Washington, Respondent, v. Michael JENSEN, Petitioner.

The STATE of Washington, Petitioner, v. Michael James WALSH, Respondent.

Nos. 57133-3, 57164-3 and 57201-1.

Supreme Court of Washington,

En Banc.

Feb. 28, 1991.

Gary P. Burleson, Mason County Prosecutor, Mike Clift, Deputy County Prosecutor, Shelton, Norm Maleng, King County Prosecutor, James M. Cline, Deputy County Prosecutor, Seattle, Ruth E. Reukauf, Deputy County Prosecutor, Yakima, for the State.

Washington Appellate Defender Ass'n, Theresa B. Doyle, Seattle, for petitioner Jensen.

Bertha B. Fitzer, Tacoma, for respondent Howe.

Washington Appellate Defender Ass'n, Lenell Nussbaum, Seattle, for respondent Walsh.

UTTER, Justice.

The juvenile defendants in these three consolidated cases were each convicted of burglarizing their parents' homes. Each case raises the same central issue: When is a parental order to a juvenile to stay away from the parental home sufficient to establish the lack of privilege element of a burglary charge? We hold that a burglary conviction can only be sustained where the parent (1) expressly and unequivocally ordered the child out of the parental home, and (2) provided some alternative means of assuring that the parents' statutory duty of care is met.

I

Former RCW 9A.52.030(1) provides:

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.

The State must prove both intent to commit a crime and unlawful entry in order to prove second degree burglary. State v. Steinbach, 101 Wash.2d 460, 462, 679 P.2d 369 (1984). A person unlawfully enters a building when he is not then licensed, invited, or otherwise privileged to enter or remain. RCW 9A.52.010(3). If a person is privileged to enter the building, then he cannot be convicted of burglary. Steinbach, 101 Wash.2d at 462, 679 P.2d 369. The juveniles in each of these cases assert that they were privileged to enter their parents' homes by virtue of their parents' obligation to provide for their dependent children.

Parents have a statutory duty to provide for their dependent children. RCW 26.20.035(1)(a), (b) provides:

(1) Any person who is able to provide support, or has the ability to earn the means to provide support, and who:

(a) Wilfully omits to provide necessary food, clothing, shelter, or medical attendance to a child dependent upon him or her ...

(b) ... is guilty of the crime of family nonsupport.

The duty of the parent to provide for the child results in the child having a privilege to enter the family home. Therefore, the State can only prove burglary if the child's privilege to enter the home has been revoked.

This holding is supported by our decision in State v. Steinbach, supra. In Steinbach, a juvenile petitioned the court for alternative residential placement (hereinafter ARP) under the provisions of RCW ch. 13.32A. Approximately 2 weeks after the court entered the ARP order, the juvenile entered her mother's home without permission and removed several items. The trial court found that the juvenile entered the home with the intent to commit a crime and entered a judgment convicting her of second degree burglary. This court overturned the conviction. We held that the juvenile's entry into her mother's home was privileged, and therefore could not be unlawful. 101 Wash.2d at 462, 679 P.2d 369. In so holding, we noted that the ARP did not revoke the juvenile's privilege to enter the parental home unless it contained a specific provision doing so. 101 Wash.2d at 463, 679 P.2d 369. We declined, however, to decide whether a conviction for burglary is appropriate where either the ARP or the parent expressly prohibits the child from returning home. 101 Wash.2d at 464 n. 1, 679 P.2d 369. That is the question before us in these consolidated cases.

The focal issue here is whether a parent can revoke the child's privilege to enter the parental home, and under what conditions is that revocation effective?

The statutory parental obligation to provide for a dependent child is limited. The "necessary" care mandated by statute is the minimum standard of the quality and quantity of food, clothing, shelter and medical care that a parent is required by law to furnish. State v. Brown, 52 Wash.2d 92, 94, 323 P.2d 239 (1958). The parent does not have to provide that care directly, as long as he or she assures that such care is provided to the child. In re Richard M., 205 Cal.App.3d 7, 15, 252 Cal.Rptr. 36 (1988). Thus, a parent fulfills her statutory duty when she provides alternative means for taking care of her child's necessities. Since the child's privilege to enter the parental home rises out of the parent's duty to provide for the child, once the parent fulfills that duty in some manner that does not require the child to have access to the home, the parent may revoke the child's privilege to enter. This revocation does not require a formal court proceeding, but it must be clearly and unequivocally conveyed to the child. The revocation can only be effective if the parent has first met his or her statutory duty to provide the necessary care for the child.

II State v. Howe

In August 1986, John Howe III ¹ moved to Shelton to live with his father. Prior to that, John lived with his mother in Alaska. Shortly after arriving in Shelton, John and his father began having difficulties. These difficulties eventually led John to move out of his father's house and into the house of his aunt and uncle, the Ackermans.

Police subsequently arrested John for taking the Ackermans' car without their permission. John was placed in juvenile detention, and while in detention, John's father told John he was no longer welcome in his father's home. After his release from detention, John moved into a foster home. His father again told John that he could not return home until such time as he could exhibit law-abiding behavior.

While in foster care, John entered his father's home through an unlocked door and took his father's car, boat, canteen and some gas. John was subsequently arrested and found guilty of burglary and several other crimes not relevant to this appeal.

Division Two of the Court of Appeals reversed the burglary conviction. State v. Howe, 57 Wash.App. 63, 786 P.2d 824 (1990). Judge Alexander, writing for the majority, interpreted State v. Steinbach, supra, as recognizing that a child has a "right" to enter the parental home. The majority then concluded that a parent cannot unilaterally terminate that right, and that John's entry into his father's home was, therefore, lawful. We disagree.

The Court of Appeals correctly concluded that the privilege the child has to enter the parental home derives from a parent's duty to provide for the care of minor children. 57 Wash.App. at 69, 786 P.2d 824. As noted above, the parent's statutory duty is set out in RCW 26.20.035(1)(a). John's father met that statutory duty. He informed the State that John could not return home, and he took John to a state-appointed shelter. By doing so, John's father fulfilled his statutory duty. John was placed in foster care, and he was at no time without the necessities the statute requires. John's father also explicitly told John that he could not return to his house. The trial court found that John's father clearly indicated to John that he was no longer welcome in his father's home, and that John knew and understood his father's communications. ² That fact distinguishes this case from Steinbach.

Since John's father fulfilled his obligations under RCW 26.20.035(1), he had the power to revoke John's privilege to enter the house. This revocation is not a "unilateral termination" of the child's rights. The revocation can only be done after the parent insures that the child's rights are protected. John's father made the revocation effective by expressly and unequivocally telling John that he could not return to the house. Since his father revoked that privilege, John's entry into the house was unlawful. We therefore reverse the Court of Appeals and affirm the juvenile court's finding of guilt.

State v. Walsh

In early October 1987, Lucille Walsh left her 16-year-old son Michael home alone when she went out of town on business. While she was away, Michael had a keg party at the family home. An estimated 50-150 people attended the party. The police were called to the party, and one child was taken away in an ambulance. Some of Lucille Walsh's furniture was smashed.

Over the course of the next few weeks Michael's behavior grew out of control. On October 20th, Ms. Walsh came home early and found Michael at home with some of his friends. At the time Michael was supposed to be at school. Ms. Walsh asked Michael to leave, but he refused and she went back to work. When she returned home that night Michael was gone. The next morning Ms. Walsh had the door locks changed. Michael had not come home the night of the 20th, and there is nothing in the record to indicate Ms. Walsh knew where he was. She did not give him any money or suggest any alternative living arrangement. Ms. Walsh simply locked Michael out of the house. At the time Michael had no other relatives in the area.

When Ms. Walsh returned home on the 21st, the day the locks were changed, she discovered someone had entered the house through a window in Michael's bedroom. She concluded that Michael was the intruder because his dirty clothes were on the floor, the shower had been used, and Michael's toothbrush was wet. She did not notice anything missing from the house.

On the 22nd, Ms. Walsh returned from work and again discovered that someone had been in the house. As before, Michael's dirty clothes were on the floor and his toothbrush was wet. She also discovered that 10 $1 bil...