State v. Thomson

• Decision Date: 12 November 1993
• Docket Number: No. 14391-7-II,14391-7-II
• Citation: 861 P.2d 492,71 Wn.App. 634
• Parties: The STATE of Washington, Respondent, v. John Wayne THOMSON, Appellant. Division 2
• Court: Washington Court of Appeals

Page 634

71 Wn.App. 634

861 P.2d 492

The STATE of Washington, Respondent, v. John Wayne THOMSON, Appellant.

No. 14391-7-II.

Court of Appeals of Washington,

Division 2.

Nov. 12, 1993.

John A. Hays, Longview (Court-appointed), for appellant.

C.C. Bridgewater, Pros. Atty., Kelso, for respondent.

MORGAN, Judge.

John Wayne Thomson appeals his conviction for first degree rape. We vacate the judgment and remand for resentencing on second degree rape.

T., an adult female, lived in a house in Cowlitz County, Washington. The house had several rooms, one of which was her bedroom. Her bedroom was equipped with a lock on the door.

T. met Thomson during the evening of July 6, 1990. During the early morning hours of July 7, she invited him to her house. Apparently, they went to the house and entered it together. He then made sexual advances, which T. rebuffed. However, she said he could sleep in a guest bedroom. She then went into her bedroom and locked the door.

At this point in time, according to the stipulated facts, Thomson was licensed or invited to be in certain areas of the home, including the living room, kitchen, bathroom, and guest bedroom. He had no license, invitation or privilege to enter T.'s bedroom.

Later that night, Thomson broke through T.'s bedroom door and forcibly compelled her to have sexual intercourse. She resisted, but her efforts failed.

The State charged Thomson with first degree rape committed in violation of RCW 9A.44.040(1)(d). RCW 9A.44.040 provides in pertinent part:

(1) A person is guilty of rape in the first degree when such person engages in sexual intercourse with another person by forcible compulsion where the perpetrator or an accessory:

. . . . .

(d) Feloniously enters into the building or vehicle where the victim is situated.

At a bench trial on stipulated facts, the trial court found that Thomson had engaged in sexual intercourse with T. by forcible compulsion, and that he had feloniously entered into a building in which T. was situated. Thus, it convicted of first degree rape.

On appeal, Thomson acknowledges that he forcibly compelled T. to have sexual intercourse, and that he therefore is guilty of second degree rape. He denies, however, that he feloniously entered a building in which T. was situated. Thus, he says, he is not guilty of first degree rape.

The issue, then, is whether Thomson feloniously entered a building in which T. was situated. We analyze the concept of felonious entry into a building, then apply it to the facts of this case.

I.

Tautologically, felonious conduct is any conduct that constitutes a felony. Because there are many kinds of felonies, there are also many kinds of felonious conduct.

One kind of felonious conduct is felonious entry. Felonious entry is entry that is burglarious, as opposed to entry that is lawful or trespassory. RCW 9A.52.020-.030; RCW 9A.52.070-.080.

Another kind of felonious conduct is felonious remaining. Felonious remaining is remaining that is burglarious, as opposed to remaining that is lawful or trespassory. RCW 9A.52.020-.030; RCW 9A.52.070-.080.

The difference between felonious entry and felonious remaining can be seen by examining State v. Collins, 110 Wash.2d 253, 751 P.2d 837 (1988). In that case, two elderly women invited the defendant into the living room of their home so he could use the phone. After he hung up, he dragged both women into a bedroom, where he raped one and assaulted the other. He was convicted of rape in the second degree, assault in the second degree, and burglary in the first degree. Only the burglary conviction reached the Supreme Court.

The Supreme Court differentiated between entry and remaining. It said the issue was not whether the defendant had unlawfully entered the women's home in the first instance, but rather whether he had unlawfully remained therein. 110 Wash.2d at 256 n. 1, 751 P.2d 837. Because the charge was burglary, and because burglary is a felony, the court could just as well have said that the issue was not whether the defendant had feloniously entered the women's home, but rather whether he had feloniously remained therein.

Apparently, the reason felonious entry was not in issue was that the defendant had not engaged in conduct of that sort. Entry into a building is burglarious, and therefore felonious, if it is unlawful and made with intent to commit a crime therein. RCW 9A.52.030. Entry into a building is unlawful if made without invitation, license or privilege. RCW 9A.52.010(3). Collins had initially entered the women's home by invitation and, as far as the evidence showed, without intent to commit a crime. 110 Wash.2d at 256 n. 1, 751 P.2d 837. Thus, his initial entry was not felonious, burglarious or unlawful, and it was not the issue in the case.

Although felonious entry was not in issue, felonious remaining was. According to numerous authorities, Annotation, Maintainability of burglary charge, where entry into building is made with consent, 58 A.L.R. 4th 336, §§ 2, 4-5, 11-12 (1987), a defendant's invitation to enter a building can be expressly or impliedly limited as to place or time, ¹ and a defendant who exceeds either type of limit, with intent to commit a crime in the building, engages in conduct that is both burglarious and felonious. ² See also, RCW 9A.52.010(3), second paragraph (recognizing implied limitation as to place); State v. Rio, ³ 38 Wash.2d 446, 230 P.2d 308, cert. denied, 342 U.S. 867, 72 S.Ct. 106, 96 L.Ed. 652 (1951) (express limitation as to place). Consistent with these authorities, the State argued that Collins' invitation to enter the home had been subject to implied limitations; that he had exceeded those limitations; that he had done so with intent to commit a crime; and that as a result he had burglariously and feloniously remained in the women's home.

The Supreme Court agreed at least on the basis of an implied limitation as to place. The court held that the record was sufficient to support an inference that Collins had been invited into the living room, but not into other parts of the house. 110 Wash.2d at 261, 751 P.2d 837. It appears to have recognized that the record was also sufficient to support inferences (1) that Collins exceeded the invitation's limit as to place when he dragged the women into a bedroom, and (2) that at that time, Collins' intent was to commit crimes in the building. It concluded that Collins' conduct constituted burglarious, i.e., felonious, remaining. ⁴

The Supreme Court also may have agreed on the basis of an implied limitation as to time. ⁵ It appears to have held or recognized that the record was sufficient to support inferences (1) that Collins had been invited into the home for the sole purpose of using the phone, 110 Wash.2d at 255, 261, 751 P.2d 837; (2) that once he had finished with the phone, his invitation expired, 110 Wash.2d at 255, 751 P.2d 837; and (3) that he remained in the house with intent to commit crimes therein. Apparently for this reason also, it concluded that Collins' conduct constituted burglarious, i.e., felonious, remaining. 110 Wash.2d at 255, 751 P.2d 837.

In finding that the record supported implied limitations as to place and time, the Supreme Court considered the purpose of the invitation as an important factor from which to infer the existence of implied limitations concerning place and time. It is not clear whether the court also held that conduct within an invitation's limits as to place and time constitutes unlawful or felonious remaining, merely because it exceeds the purpose for which the victim extended the invitation. ⁶

Collins' significance here is that it illuminates the difference between felonious entry and felonious remaining. It shows that felonious entry occurs when a person initially enters a building without invitation, license or privilege, and with intent to commit a crime therein. RCW 9A.52.030(1); RCW 9A.52.020(1); RCW 9A.52.010(3). It shows that felonious remaining occurs when (1) a person has lawfully entered a building pursuant to invitation, license or privilege; (2) the invitation, license or privilege is expressly or impliedly limited; (3) the person's conduct violates such limits; and (4) the person's conduct is accompanied by intent to commit a crime in the building. RCW 9A.52.030(1); RCW 9A.52.020(1); RCW 9A.52.010(3); State v. Collins, supra; State v. Rio, supra.

II.

With this understanding of felonious entry, we now analyze whether Thomson feloniously entered a building in which T. was situated. In the first part of our analysis, we discuss whether T.'s house was a building and whether Thomson feloniously entered it or any part of it. In the second part of our analysis, we discuss whether T.'s bedroom was a "building" separate from the house.

A. THE HOUSE

It is undisputed that T.'s house was a building. RCW 9A.04.110(5). The question, then, is whether Thomson feloniously entered her house.

This question has two parts. First, did Thomson feloniously enter the house when he first arrived there in T.'s company? The record shows that she invited him in, and they entered together. The record does not show that he harbored criminal intent at that time. It follows that he did not enter the house feloniously at that time.

Second, did Thomson feloniously enter the house when, later in the night, he broke into T.'s locked bedroom? The record shows that Thomson had initially entered the house lawfully, pursuant to T.'s invitation; that T.'s invitation was limited in such a way as not to include her bedroom; that Thomson violated this limit when he broke into the bedroom; and that he broke into the bedroom with intent to commit a crime therein. For the reasons set forth above, the conduct shown by these facts is felonious remaining, as opposed to felonious entry. Thus, Thomson feloniously remained in the house when he entered T.'s bedroom, but he did not feloniously enter the house at that time.

B. THE BEDROOM

It is undisputed...