State v. Jackson

• Decision Date: 29 June 1989
• Docket Number: No. 55278-9,55278-9
• Citation: 774 P.2d 1211,112 Wn.2d 867
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Destin JACKSON, Petitioner.

Page 867

112 Wn.2d 867

774 P.2d 1211

STATE of Washington, Respondent, v. Destin JACKSON, Petitioner.

No. 55278-9.

Supreme Court of Washington En Banc.

June 29, 1989.

As Charged July 28, 1989.

Washington Appellate Defender

Neil M. Fox, Seattle, for petitioner.

Norm Maleng, King County Prosecutor, Susan J. Noonan, Deputy King County Prosecutor, Seattle, for respondent.

CALLOW, Chief Justice.

The defendant, Destin L. Jackson was convicted of attempted second degree burglary. He contends the trial court erred in giving an inference of intent instruction.

The issues presented are:

1. In an attempted burglary case, is it error to instruct the jury that it may infer the defendant acted with intent to commit a crime within the building from the fact that the defendant may have attempted entrance into the building?

2. Is malicious mischief in the third degree a lesser included offense within attempted burglary in the second degree, where a substantial step taken in the furtherance of the burglary is the malicious destruction of property?

3. Does federal due process require the state to plead the nature of the crime a defendant intended to commit inside the building he tried to enter? See and compare State v. Bergeron, 105 Wash.2d 1, 711 P.2d 1000 (1985), overruling, State v. Johnson, 100 Wash.2d 607, 674 P.2d 145 (1983).

We hold the trial court cannot instruct the jury, where the charge is attempted burglary, that it may infer the defendant acted with intent to commit a crime within a building, where the evidence is that the defendant may have attempted entrance into a building, but there exist other equally reasonable conclusions which follow from the circumstances.

On the evening of February 2, 1986, a Seattle police officer received a dispatch call to proceed to Neal's Tailoring and Beverage Shop. As the officer was coming around a corner he saw the defendant kicking the front door of the shop. The defendant was taking short running kicks at the door and bouncing off. The kicks were aimed at the window area of the door. Once the defendant spotted the officer, he proceeded to briskly walk away. The officer placed the defendant under arrest. The officer testified that no one else was in the vicinity and that the defendant was constantly in his sight. When the door was examined it was found that about 10 inches of Plexiglas had been pushed inward and part of the wood stock around the Plexiglas was broken out of its frame. Footprints existed on the Plexiglas and they appeared to match the shoes of the defendant. The Plexiglas was not taken into custody, even though the right edge had been pushed inward, as it still prevented entry into the business. The molding which holds the glass in the door was broken on the inside, and there was wood on the floor. The pressure from the outside tore the molding off on the inside.

The defendant was charged with attempted second degree burglary. At trial, the defendant denied kicking the door. He claimed he noticed the broken door as he was walking by the shop and was arrested as he continued on his way.

At the conclusion of the State's case, the defendant moved for a dismissal asserting:

This may get to attempting malicious mischief, but to stack inferences of intent as to what was intended in terms of kicking or knocking out the door, then another inference if he intended to break in, he intended to commit a crime is beyond the limits of reasonable inferences. One inference is not enough. There is evidence to support one inference that he intended to break in, but you are asking, or the State would be asking, your honor, for the jury to do is to stack inferences. First of all, you have to infer he intended to break in based on his conduct. If you believe that once--that he did it, then that he intended to commit a crime. Stacking inferences is something that is beyond a prima facie case. Therefore, the case should proceed only on attempted criminal trespass or malicious mischief.

The trial court denied the motion. At the conclusion of the trial, the court heard exceptions to the proposed instructions to the jury.

[Defense Counsel] The defense would except to your Honor's failure to give the lesser included. The defense would suggest that the attempt statute is so broad. When you get down to what is alleged, namely, Destin Jackson broke the door in an attempt to get in that, indeed, legally and factually you would have to commit malicious mischief, or attempted burglary, which in a manner which has been charged in this case. For that reason, I would except to your Honor's failure to give that lesser included instruction.

. . . . .

[Defense Counsel] In addition, the defense would except to your Honor's giving the inference Instruction No. 10. Factually, the cases do not support that inference. The instruction reads, "A person who remains unlawfully in a building with intent to commit a crime." However, the record does not support the allegation Mr. Jackson--even if you assume it was Mr. Jackson who entered or remained unlawfully, he is charged with attempting to do so. Again, in the motion to dismiss at the end of the State's case, you are asking the jury first to infer what his intent is, then asking them to infer what his intent was assuming the inference, that is inappropriate. It is clear on the face of the instruction it doesn't apply here because no injury was--or entry was actually made. That is the reason this instruction is inappropriate and the defense would except to it being given.

. . . . .

[Defense Counsel] Your Honor, in terms of our record, then having changed that, the defense would still suggest it is inappropriate because it stacks inferences. It requires the jury to make one conclusion, then, based on that conclusion, suggests they make another inference. It is a permissive inference as outlined here, but it is a comment on the evidence, if you find this then you can find that, then move on from there. The defense believes it is stacking inferences and would rely on that as previously explained.

Over the defendant's objection the court gave the following jury instruction:

A person who attempts to enter or remain unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein unless such entering or remaining shall be explained by evidence satisfactory to the jury to have been made without such criminal intent. This inference is not binding upon you and it is for you to determine what weight, if any, such inference is to be given.

(Italics ours.) WPIC 60.05 does not include the underlined words "attempts to". The defendant objected to the trial court's failure to give a lesser included instruction. (See WPIC 4.11.) However, the defendant did not propose an instruction setting out the crime, nor did he except to the instruction which defined burglary. These issues were not raised in the petition for review; only the objection to the inference of intent instruction and whether there is evidence of an actual entry are raised before us. The jury found the defendant guilty as charged.

In ruling on the motion for new trial the trial court stated in part:

THE COURT: [C]ounsel reminded me that there was a motion for a new trial brought by the defense in regard to an instruction, ... which I gave to the jury, in regard to the inference of intent to commit a crime therein, this being an attempted burglary in the second degree in which the jury found defendant was guilty of the crime of attempted burglary in the second degree.

The trial court denied the motion for new trial, the defendant appealed and we granted a petition for review after the Court of Appeals affirmed his conviction.

I

QUAERE: What Is the Function of An Inference and When Is an

Inference Permissible?

" ' "Presumptions" ... "may be looked on as the bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts." ...' " Bradley v. S.L. Savidge, Inc. 13 Wash.2d 28, 123 P.2d 780 (1942) (citing Beeman v. Puget Sound Traction Light & Power Co., 79 Wash. 137, 139, 139 P. 1087 (1914), (quoting Paul v. United Rys. Co., 152 Mo.App. 577, 134 S.W. 3 (1911))).

The basic notions upon which presumptions are grounded are simple. When fact A (the basic fact) is proved at a trial the courts will by rule assume that fact B (the presumed fact) exists for certain purposes and with certain limitations. This specific assumption or inference by application of a general rule is a presumption.

K. Tegland, Wash Prac., Evidence § 65, at 127 (2d ed. 1982).

Most presumptions have come into existence primarily because the judges have believed that proof of fact B renders the inference of the existence of fact A so probable that it is sensible and timesaving to assume the truth of the fact A until the adversary disproves it.

E. Cleary, McCormick on Evidence § 343, at 969 (3d ed.1984).

We follow Bradley v. S.L. Savidge, Inc., supra, in quoting the definition of presumption as defined in Heidelbach v. Campbell, 95 Wash. 661, 668, 164 P. 247 (1917):

A presumption is an inference, affirmative or disaffirmative, of the truth of a proposition of fact which is drawn by a process of reasoning from some one or more matters of known fact. The presumption arises from a want of knowledge of the truth of the proposition. It is in the nature of evidence, and if it be known whether the given proposition is true or false, there can be no presumption because the fact is established which the presumption tends to prove or disprove.

Presumptions are one thing; inferences another. Presumptions are assumptions of fact which the law requires to be made from another fact or group of facts; inferences are logical deductions or conclusions from an established fact. Presumptions deal with legal processes, whereas inferences deal with mental processes. Lappin v. Lucurell, 13 Wash.App. 277, 284, 534 P.2d 1038, 94 A.L.R.3d 594 (1975). "An...