State v. Wilson

Decision Date09 January 2007
Docket NumberNo. 34277-4-II.,34277-4-II.
Citation150 P.3d 144,136 Wn. App. 596
PartiesSTATE of Washington, Appellant, v. Gregory WILSON, Jr., Respondent.
CourtWashington Court of Appeals

Carol L. Case, Clallam County Prosecutor's Office, Port Angeles, WA, for Appellant.

Manek R. Mistry, Jodi R. Backlund, Backlund & Mistry, Olympia, WA, for Respondent.


¶ 1 The State appeals the trial court's dismissal of Gregory Wilson's first degree burglary jury conviction and its same criminal-conduct finding in calculating Wilson's offender score for his assault in violation of a protection order and felony harassment convictions. We affirm the trial court's dismissal of the burglary conviction, reverse the trial court's finding that the assault and the harassment constituted the same criminal conduct for offender score purposes, and remand for resentencing.


¶ 2 On April 16, 2005, the Clallam County District Court issued a no-contact order prohibiting Gregory Wilson from contacting Charlene Sanders, his girlfriend of six years, in person, by telephone, or through any intermediary except an attorney, a police officer, or an officer of the court. The no-contact order listed Sanders' address as 1123 East Park Avenue in Port Angeles, but it did not prohibit Wilson's presence at that address, where he and Sanders had been living together.

¶ 3 Shortly thereafter, Sanders and Wilson co-signed a lease for the 1123 East Park residence and resumed living together. Their automobiles and all Wilson's clothing remained at this residence. Wilson had keys to the residence, to which Sanders referred as "[o]ur house."

¶ 4 On August 22, 2005, Wilson and Sanders argued, and Wilson left the house angry around 11:00 P.M. Sanders "knew he'd be back." Wilson returned home around 2:30 A.M. Unable to open the door without his key, which he had left behind, Wilson angrily forced open the kitchen door, splintering some of the wood, went to the bedroom, grabbed Sanders by her hair, and pulled her out of bed. Sanders asked Wilson to go into the kitchen with her so they would not wake her sleeping grandson.

¶ 5 At some point, Wilson kicked Sanders once, left the house to speak with friends outside, immediately returned and re-entered the house, picked up a piece of the splintered wood from the kitchen door, and used it to threaten to kill Sanders.

¶ 6 Using her cellular phone to call 911, Sanders told the police that Wilson was living at the home, but "he wasn't supposed to be there." Wilson left the home and traveled by car to a friend's house. When the police arrived at the residence, Sanders refused medical attention because she "hadn't been hurt in any way."

¶ 7 Later that evening, the police arrested Wilson at his friend's house and took him to the police station to be interviewed. Wilson voluntarily admitted that he was aware of the no-contact order, but said that he had moved in because he was "trying to do the right things [sic] to assist Sanders in taking care of her kids, providing for them and such." Report of Proceedings (RP) (Nov. 1, 2005) at 120.


¶ 8 The State charged Wilson with first degree burglary, assault in violation of a protection order, and felony harassment.


¶ 9 At Wilson's jury trial, the State presented the following evidence: (1) photographs of the kitchen door that Wilson broke when he entered the house; (2) the 911 tape, which included Sanders' panic-stricken plea for the police come to the house because Wilson was assaulting and threatening her; and (3) the testimonies of the arresting officers and Sanders, who testified somewhat reluctantly.1 Wilson presented no defense case.

¶ 10 After both sides rested, Wilson moved to dismiss the burglary charge. He argued that all the evidence established that he lived in the home with Sanders and, thus, he could not have entered unlawfully. The State countered that the no-contact order made Wilson's presence unlawful regardless of the parties' rental agreement or Sanders' consent to Wilson's presence in the home. Expressing its skepticism of the burglary charge's validity, the trial court denied the motion and allowed it to go the jury with the other two counts. The jury convicted Wilson of all three charges.

¶ 11 After the jury returned its verdict, the trial court noted that the critical question under the burglary statute is whether the defendant is licensed or privileged to be in the home at the time of the allegedly unlawful entry, and it dismissed the burglary conviction, for the following reasons: (1) the no-contact order did not prohibit Wilson's presence in this house; (2) Sanders had authorized Wilson to be in the home, he had keys to the home, and he had been living there for several months; (3) Sanders had never revoked Wilson's right to be in the house; and (4) Sanders told 911 dispatch that Wilson lived at the residence even at the time of her call for help. The trial court also expressed concern that, if it adopted the State's reasoning, Wilson would have committed a burglary every day for four months before his arrest, each time he entered the residence with intent to have contact with Wilson.

B. Sentencing

¶ 12 At sentencing, the State argued that Wilson's offender score should be one because the events underlying the remaining two jury convictions occurred sequentially rather than simultaneously and, thus, there was a different mens rea for each action. Wilson argued that his offender score should be zero because the assault and the harassment comprised the same criminal conduct.

¶ 13 The trial court agreed with Wilson, reasoning that (1) when Wilson came into the house at 2:30 A.M., his intent was to assault and to harass Sanders; (2) these two charges included the same victim and the same intent, and they occurred simultaneously; and (3) therefore, the assault and the harassment should count as the same criminal conduct in calculating Wilson's offender score. Treating the two counts as the same criminal conduct and calculating Wilson's offender score as zero, the trial court sentenced Wilson to 11 months confinement for the assault, with credit for time served, and 90 days for the harassment, to be served concurrently.

¶ 14 The State appeals.


¶ 15 It is undisputed that (1) Wilson entered the residence he shared with Sanders, (2) intending to assault and to harass Sanders inside, and (3) his contact with her violated a no-contact order. The State argues that, because Wilson entered and remained with intent to commit a crime, namely to contact Sanders in violation of the no-contact order, the trial court erroneously dismissed Wilson's burglary conviction. Thus, we address a legal issue of first impression— whether entry or remaining in a jointly shared residence, from which neither party has been lawfully excluded, is unlawful for purposes of establishing this essential element of the crime of burglary.2

¶ 26 We agree with the trial court and hold that, although the acts Wilson committed inside the residence were unlawful, his acts of entering and remaining inside were not themselves unlawful because the no-contact order did not exclude him from the residence he shared with Sanders.

A. Standard of Review

¶ 17 Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." Salinas, 119 Wash.2d at 201, 829 P.2d 1068. Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wash.2d 634, 638, 618 P.2d 99 (1980).

¶ 18 Credibility determinations are for the trier of fact and are not subject to appellate review. State v. Camarillo, 115 Wash.2d 60, 71, 794 P.2d 850 (1990). We must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wash.App. 410, 415-16, 824 P.2d 533, review denied, 119 Wash.2d. 1011, 833 P.2d 386 (1992).

B. First Degree Burglary

¶ 19 We reiterate the following uncontroverted facts that the trial court found significant: (1) The no-contact order did not prohibit Wilson from entering or remaining at the 1123 East Park residence; (2) the no-contact order left unchecked the adjacent box and blanks in the form that read: "() remain ____ feet from the above-listed person(s) residence(s), workplace(s) ____, school/daycare_____"; and (3) in contrast, there were check marks in four other adjacent boxes prohibiting various forms of personal contact with Sanders. Exhibit 1. Thus, the no-contact order language prohibited Wilson only from being in contact with Sanders; it did not prohibit him from entering or getting near any specific location, including the East Park residence. Moreover, in spite of the State's argument to the contrary, it is also uncontroverted that, at the time of the incident, Wilson was living at the 1123 East Park residence with Sanders' permission. Not only does the record support this fact, but also the State failed to assign error to the trial court's finding of fact that:

Despite the No-Contact order of April 16, 2005, Ms. Sanders and Mr. Wilson had co-habited at the Park Avenue address continually since said order and were so co-habiting on the date of the alleged Burglary. Both she and Mr. Wilson had signed the lease agreement for that residence when they moved in and they had resided there essentially continually since. Mr. Wilson kept all his clothes and personal belongings there and considered it his home. Handwritten note: He also had keys to the residence.

Clerk's Papers (CP) at 21, Findings of Fact and Conclusions of Law No. 3. C. Thus, ...

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