State v. Moreno, 99147-2

• Court: United States State Supreme Court of Washington
• Writing for the Court: JOHNSON, J.
• Docket Number: 99147-2
• Parties: STATE OF WASHINGTON, Respondent, v. FRANCISCO RUBEN MORENO, Petitioner.
• Decision Date: 24 November 2021

STATE OF WASHINGTON, Respondent,
v.
FRANCISCO RUBEN MORENO, Petitioner.

No. 99147-2

Supreme Court of Washington, En Banc

November 24, 2021

JOHNSON, J.

This case presents the sole issue of whether knowledge of unlawfully entering or remaining is an implied essential element of first degree burglary. Francisco Moreno was convicted of first degree burglary, which is defined by statute and requires the State to prove that an accused (1) entered or remained unlawfully in a building, (2) with an intent to commit a crime. RCW 9A.52.020(1). On appeal, Moreno argued that both the charging document and jury instructions were constitutionally deficient because they omitted the implied essential element of knowledge of the unlawfulness of his entering or remaining.

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The Court of Appeals affirmed Moreno's convictions, concluding that no implied essential element exists for first degree burglary. We affirm the Court of Appeals.^[1]

FACTS & PROCEDURAL HISTORY

Moreno's burglary conviction resulted from him assaulting Ashley Vollmar after breaking into a townhome owned by Vollmar on April 8, 2018. Vollmar and Moreno began a relationship and started living together in the townhome in August 2017. Vollmar testified that she told Moreno he could no longer live in the townhome in October 2017 and that she changed the locks. Because Vollmar found out that she and Moreno were expecting a child, she attempted to continue their relationship. Nonetheless, she ended their relationship in January 2018.

Moreno disputed the length of their relationship in addition to when and whether Vollmar prohibited him from living in the townhome, and Moreno's primary defense to the first degree burglary charge was that he was authorized to be in the townhome. Moreno testified that he lived with Vollmar in the townhome up to the time of the incident on April 8, 2018. He also contended that Vollmar had never changed the locks. He testified that he split home expenses with Vollmar, that he kept his personal belongings and cars at the townhome, and that he picked up his tribal checks there.

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Vollmar testified that on the day of the incident, she retrieved a car Moreno had taken from her earlier that week after he had picked up a tribal check, which was being sent to the townhome. She and Moreno spoke on the phone, and Moreno insisted on coming over, despite warnings from Vollmar that he was not welcome. Moreno threatened Vollmar over the phone. As Vollmar called 911, she heard her door being kicked in. She explained that Moreno came into her bedroom where she was with her son, held her down by her neck, and took her phone. Moreno grabbed Vollmar's hair as she tried to get up, but Vollmar was eventually able to break loose. Vollmar testified that as she ran downstairs, Moreno grabbed her again, causing her to fall on her knees and stomach. Vollmar was pregnant at the time of the assault.

Moreno was charged with first degree burglary aggravated by domestic violence against a pregnant victim, fourth degree assault with domestic violence, and interfering with reporting domestic violence.^[2] The charging document stated, "That the defendant, on or about the 8th day of April, 2018, with intent to commit a crime against a person or property therein, did enter and remain unlawfully in the building of Ashley Vollm[a]r's residence." Clerk's Papers (CP) at 162. The "to convict" jury instructions repeated the charging language and stated, "(1) That on

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or about the 8th day of April, 2018, the defendant entered or remained unlawfully in a building." CP at 128.

The jury instructions provided a definition of "entering or remaining unlawfully" that mirrored the statutory definition: "A person enters or remains unlawfully in or upon premises when he or she is not then licensed, invited, or otherwise privileged to so enter or remain." CP at 132; RCW 9A.52.010(2). No objection was raised at the trial court challenging the charging document or jury instructions.

The jury convicted Moreno on all counts. The court sentenced Moreno to 364 days for both his fourth degree assault and interfering with domestic violence reporting convictions, and to a 48-month term with 18 months' community custody for his first degree burglary conviction. The court ran the sentences concurrently.

Moreno appealed his conviction, arguing for the first time, in part, that his conviction for first degree burglary should be reversed because the charging document and jury instructions omitted an implied essential element that a defendant have knowledge of the unlawfulness of the entering or remaining. Division One of the Court of Appeals rejected Moreno's argument.

Moreno then sought discretionary review in this court, and we granted review limited to the issue of whether knowledge of the unlawfulness of entering or remaining is an implied essential element of burglary. State v. Moreno,

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14 Wn.App. 2d 143, 470 P.3d 507 (2020), review granted in part, 196 Wn.2d 1042 (2021).

ANALYSIS

Moreno alleges constitutional error, claiming the charging document and the "to convict" jury instructions omitted an implied essential element, arguing that a charging document is constitutionally deficient unless it contains both the statutory and nonstatutory essential elements of a crime. State v. Kjorsvik, 117 Wn.2d 93, 101-02, 812 P.2d 86 (1991). We review charging documents de novo. Further, it is reversible error if the "to convict" jury instructions relieve the State of its burden to prove each element beyond a reasonable doubt. State v. Brown, 147 Wn.2d 330, 339, 58 P.3d 889 (2002). It is undisputed that knowledge of the unlawfulness of entering or remaining was not included in the charging document or the "to convict" instructions. If we accept Moreno's argument that such knowledge is an implied essential element of first degree burglary, then both the charging document and the instructions were constitutionally deficient and reversal is necessarily required.

Determining whether an implied essential element exists starts as a question of statutory construction, which we review de novo. "[W]e have concluded that nonstatutory elements are implied either because they fit within long-standing principles of law or are derived from our reasoned judgment as to legislative

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intent." State v. Miller, 156 Wn.2d 23, 28, 123 P.3d 827 (2005). We have recently discussed the animating principles involved in impliedly adding a mens rea element to a criminal statute.

In general, "[w]e construe statutes to avoid constitutional doubt." But we construe statutes only "to avoid constitutional difficulties when such construction is consistent with the purposes of the statute."

In many cases, these statutory interpretation rules have led the United States Supreme Court and this court to read mens rea elements into statutes where the legislature omitted them.

This line of cases does not explicitly discuss the constitutional limits of the police power-it emphasizes interpreting each statute in light of "the background rules of the common law, in which the requirement of some mens rea for a crime is firmly embedded." But they reflect a consistent concern about criminalizing fundamentally innocent conduct.

State v. Blake, 197 Wn.2d 170, 188-89, 481 P.3d 521 (2021) (alteration in original) (emphasis added) (citations omitted) (quoting Utter ex rel. State v. Bldg. Indus. Ass'n of Wash., 182 Wn.2d 398, 434, 341 P.3d 953 (2015); In re Pers. Restraint of Williams, 121 Wn.2d 655, 665, 853 P.2d 444 (1993); Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994)). Thus, as a general proposition, we are primarily concerned with adding mens rea elements to strict liability criminal statutes that otherwise would have no mental state. Moreover, we normally imply mens rea elements to such statutes to avoid criminalizing otherwise innocent conduct in possible violation of due process principles.

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Under this statutory challenge, the first step in the analysis is to turn to the statute's language and possibly to neighboring provisions and the statutory scheme for additional guidance.

The statute defining first degree burglary provides:

A person is guilty of burglary in the first degree if, with intent to commit a crime against a person or property therein, he or she enters or remains unlawfully in a building and if, in entering or while in the building or in immediate flight therefrom, the actor or another participant in the crime (a) is armed with a deadly weapon, or (b) assaults any person.

RCW 9A.52.020(1).^[3]

First degree burglary is defined in chapter 9A.52 RCW, which also defines the crimes of criminal trespass and vehicle prowling. Chapter 9A.52 RCW includes definitions of general terms that apply to each of the three crimes. As significant here, the statute provides a definition of when a person enters or remains unlawfully: "A person 'enters or remains unlawfully' in or upon premises when he or she is not then licensed, invited, or otherwise privileged to so enter or remain." RCW 9A.52.010(2).

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Both parties agree that knowledge of the unlawfulness of entering or remaining is not a statutory element of first degree burglary^[4] and that the statute contains a mens rea element by requiring proof of an intent to commit a crime. Because of this, the burglary statute cannot be characterized as a strict liability crime, which is the traditional context in which we analyze whether adding a mens rea element is required. Moreno argues, though, that notwithstanding the statutory element of an intent to commit a crime, we should imply an additional mens rea element. Moreno does not cite to any cases where we have implied a mens rea element to a statute that has an existing mental element. And he similarly cites to no out of state cases in support of adding an implied mens rea element to a...