State v. Johnson

• Decision Date: 07 March 2006
• Docket Number: No. 31830-0-II.,31830-0-II.
• Citation: 132 P.3d 737,132 Wn. App. 400
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Ronnie Keith JOHNSON, Appellant.

Page 737

132 P.3d 737

132 Wn. App. 400

STATE of Washington, Respondent, v. Ronnie Keith JOHNSON, Appellant.

No. 31830-0-II.

Court of Appeals of Washington, Division 2.

March 7, 2006.

Publication Ordered April 18, 2006.

Mary Katherine Young High, Reed Manley Benjamin Speir, Attorneys at Law, Tacoma, WA, for Appellant.

Kathleen Proctor, Pierce County Prosecuting Attorney Office, Tacoma, WA, for Respondent.

QUINN-BRINTNALL, C.J.

¶ 1 Ronald Johnson appeals his conviction for second degree burglary, arguing that because the garage he unlawfully entered was missing its overhead door, that it is not a building as that term is used in the statutory definition of burglary. Because the statutory definition of a building is broad enough to include the garage in this case and the State presented sufficient evidence to allow a rational jury to find beyond a reasonable doubt that the garage belonging to Andria Simcoe and her husband is a building, we affirm Johnson's conviction.

FACTS

¶ 2 On September 16, 2003, Simcoe saw a man she did not know walking along her driveway, towards the street and away from her garage. The man was carrying tools she recognized as hers. She normally stored the tools inside the garage; she later discovered they were no longer there. Simcoe identified Johnson as the man she saw walking away from her garage carrying her tools. Johnson did not have permission to enter the garage or take the tools.

¶ 3 The garage was not attached to the house.¹ The Simcoes stored tools, lawn equipment, and personal belongings in the garage. The garage was a permanent structure, built in the same wood-framed style as the house. It had a concrete floor, a roof, and four sides. The front side had an opening for a vehicle garage door, but no door was installed. This meant that the garage was not and could not be fully enclosed. Because of the missing door, the garage was enclosed on three sides but open on the fourth like a shop or a bay.

¶ 4 The State charged Johnson with second degree burglary and third degree theft. Johnson unsuccessfully moved to dismiss the charges prior to trial, arguing that because the missing garage door meant that the garage could not be secured, it was not a building as that term is used in the second degree burglary statute.

¶ 5 At trial, the trial court rejected the defense definition of building² and gave the jury a standard jury instruction: "Building, in addition to its ordinary meaning, includes any dwelling, fenced area, vehicle, railway car, cargo container or any other structure used mainly for lodging of persons or for carrying on business therein, or for the use, sale or deposit of goods." Clerk's Papers (CP) at 58; see 11 WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 2.05, at 24 (2d ed.1994). The parties argued to the jury whether the garage met that definition.

¶ 6 The State also asked that the court's elements instruction for second degree burglary omit the means of unlawfully remaining. The defense acquiesced in the State's request to omit the "or remaining" language, but the court inadvertently included "remaining" in element (2), the intent element.³ CP at 48.

¶ 7 The jury convicted Johnson as charged, and the court imposed a standard range sentence of 68 months for the burglary and suspended a 12-month sentence on the third degree theft conviction. Johnson appeals his burglary conviction only.

¶ 8 On appeal, Johnson's counsel contends that the State failed to present sufficient evidence to support the jury's verdict finding him guilty of burglary because the Simcoes' garage was not a building. He contends that without a garage door, the garage had only three complete sides and was, therefore, not a building as a matter of law. Alternatively, he argues that the statutory definition of building is ambiguous.

¶ 9 Johnson's counsel also argues that he was deprived of his right to a unanimous jury because the instructions allowed individual jurors to convict him under either the unlawful entry or the unlawful remaining means of committing burglary.

¶ 10 In his pro se Statement of Additional Grounds for Review (SAG),⁴ Johnson raises a cluster of claims all premised on the notion that the detached garage was a unit of a multi-unit building, a unit that was not a "building" because it was not "separately secured." He also argues that the trial court violated his right to a speedy trial, that his counsel was ineffective for failing to subpoena witnesses, and that the State committed misconduct during closing argument.

ANALYSIS

DEFINITION OF BUILDING

¶ 11 We review the meaning of a statutory definition de novo, as an issue of law. State v. Wentz, 149 Wash.2d 342, 346, 68 P.3d 282 (2003) (interpreting the definition of building as it relates to burglary). Once we determine the proper construction or meaning of the statute, however, whether the evidence produced at trial matches or meets that definition is a factual question for the trier of fact that we review for sufficiency of the evidence.⁵ See Wentz, 149 Wash.2d at 347, 352, 68 P.3d 282 (citing to sufficiency standards and applying those standards); State v. Gans, 76 Wash.App. 445, 446-47, 452, 886 P.2d 578 (1994), overruled on other grounds by Wentz, 149 Wash.2d 342, 68 P.3d 282.

¶ 12 Second degree burglary includes an element of unlawfully entering or remaining "in a building other than a vehicle or a dwelling." RCW 9A.52.030(1). It is this unlawful entry or remaining in a building that creates liability for burglary above and beyond the independent crime intended within that building, commonly theft. Washington's Criminal Code defines "building":

[I]n addition to its ordinary meaning, includes any dwelling, fenced area, vehicle, railway car, cargo container, or any other structure used for lodging of persons or for carrying on business therein, or for the use, sale or deposit of goods; each unit of a building consisting of two or more units separately secured or occupied is a separate building.

RCW 9A.04.110(5).

¶ 13 We have found no Washington appellate cases interpreting this definition as it relates to door-less (or three-walled) garages, carports, shops, sheds, or the like.⁶ The Washington cases interpreting the statutory definition of building focus instead on fenced areas,⁷ when portions of a building constitute a separate building,⁸ or other counter-intuitive but specially designated buildings.⁹ But one case applied this definition to a non-fenced structure and held that the normally fully enclosed (but temporarily partly open) basement area beneath a tavern was a building under this statute. The court explained that the open basement was a structure used for carrying on business because it contained plumbing fixtures used in the main part of the business. State v. Couch, 44 Wash.App. 26, 30-31, 720 P.2d 1387 (1986).

¶ 14 The Washington statute defining building expressly includes the "ordinary meaning" of that term. RCW 9A.04.110(5). Building is ordinarily defined as

[a] constructed edifice designed to stand more or less permanently, covering a space of land, usu. covered by a roof and more or less completely enclosed by walls, and serving as a dwelling, storehouse, factory, shelter for animals, or other useful structure— distinguished from structures not designed for occupancy (as fences or monuments) and from structures not intended for use in one place (as boats or trailers) even though subject to occupancy.

WEBSTER'S THIRD NEW INT'L DICTIONARY 292 (1969).

¶ 15 The State's evidence established that the Simcoes' garage is permanent and immobile, covers a space of land, is roofed, and serves as a storehouse or other useful structure. To meet the above definition, such a structure need only be "more or less completely enclosed" and we hold that a four-sided garage that is merely missing a door satisfies this requirement.

¶ 16 The definition of building in RCW 9A.04.110(5) also includes a number of specific items and structures that are capable of being burglarized. This list of non-traditional buildings includes "any other structure used for lodging of persons or for carrying on business therein, or for the use, sale or deposit of goods." RCW 9A.04.110(5).¹⁰

¶ 17 Whether or not the garage falls within the "ordinary meaning" of what is a building, it is clearly a "structure" used for the "deposit of goods." A structure is "something constructed or built." WEBSTER'S THIRD NEW INT'L DICTIONARY 2267 (1969). And "goods" are "tangible movable personal property having intrinsic value." Gans, 76 Wash.App. at 450, 886 P.2d 578 (quoting WEBSTER'S THIRD NEW INT'L DICTIONARY 978 (1981)). The only testimony regarding the use of the structure in question is that the Simcoes used it to store tools, lawn equipment, and items soon to be sold at a garage sale. The Simcoes' garage, even without its door, falls within the specific legislative definition of building.¹¹

¶ 18 The trial court properly instructed the jury in the language of the statute, including the determinative language quoted above.¹² The evidence, when viewed in the light most favorable to the State, was sufficient to allow a reasonable fact-finder to conclude beyond a reasonable doubt that the Simcoes' garage was a building. See State v. Green, 94 Wash.2d 216, 220-22, 616 P.2d 628 (1980).

UNANIMITY

¶ 19 Relying on State v. Klimes, 117 Wash.App. 758, 73 P.3d 416 (2003), overruled in part by State v. Allen, 127 Wash.App. 125, 110 P.3d 849 (2005), Johnson contends that unlawful entering and unlawful remaining are alternative means of committing burglary. He then asserts that he was deprived of his constitutional right to a unanimous jury verdict because the trial court's "to convict" instruction allowed conviction if he entered or remained in the garage with intent to commit a crime.

¶ 20 But Klimes is no longer good law. In Allen, Division One repudiated its overly broad statement in Klimes that the unlawful entering and unlawful...