State v. Johnson , 159 Wash. App. 766 ( 2011 )

Quinn-Brintnall, J.

¶1 — On July 28, 2008, Elma Police Officer Anthony Duane Hayden caught Bradley Johnson removing copper from a locomotive in the Puget Sound Pacific Railroad yard in Elma, Washington. A jury found Johnson guilty of second degree burglary, in violation of RCW 9A.52.030, as charged. Johnson appeals his conviction, arguing that (1) a locomotive is not a railway car and that, therefore, insufficient evidence supports the jury’s verdict and (2) the trial court erred by admitting a receipt found on Johnson at the time of his arrest showing that the day before his arrest in the railroad yard, he had sold 105 pounds of copper wire to Valley Recycling Inc. Holding that a locomotive is a railway car, and thus meets the statutory definition of a “building” for purposes of second degree burglary, and that the trial court properly admitted the copper wire receipt as relevant evidence of Johnson’s intent, we affirm.

DISCUSSION

¶2 Resolving the issues presented in this appeal requires that we answer three questions. First, is a locomotive a “railway car” and, as such, a “building” as defined in RCW 9A.04.110(5). Second, whether the trial court erred in admitting the Valley Recycling sales receipt for 105 pounds of copper wire. Last, does sufficient evidence support the jury’s verdict finding that Johnson entered and remained in a railway car with an intent to commit a crime in violation of the second degree burglary statute, RCW 9A.52.030(1). We hold that a locomotive is a railway car, the Valley Recycling receipt was admissible to show Johnson’s intent, and sufficient evidence supports the jury’s verdict, and we affirm Johnson’s conviction.

Statutory Interpretation

¶3 A person commits the crime of second degree burglary when, with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a “building.” RCW 9A.52.030d). The term “building” has a particularized meaning. As defined in RCW 9A.04.110(5), “ ‘[b]uilding’, in 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.” (Emphasis added.) Johnson argues that the term “railway car” does not include a locomotive. We disagree.

¶4 In addressing whether a locomotive is a “railway car” and, therefore, a “building” as defined in RCW 9A. 04-.110(5), we review the meaning of a statutory definition de novo, as an issue of law. State v. Wentz, 149 Wn.2d 342, 346, 68 P.3d 282 (2003). When a statutory term is undefined, absent a contrary legislative intent, we give the words of a statute their ordinary meaning, and we may look to a dictionary for such meaning. State v. Gonzalez, 168 Wn.2d 256, 263-64, 226 P.3d 131, cert. denied, 131 S. Ct. 318 (2010). A statute is ambiguous if it is subject to two or more reasonable interpretations. State v. McGee, 122 Wn.2d 783, 787, 864 P.2d 912 (1993). A possible but strained interpretation is not reasonable and will not render a statute ambiguous. See McGee, 122 Wn.2d at 787; State v. Brooks, 157 Wn. App. 258, 262, 236 P.3d 250 (2010); State v. Leek, 26 Wn. App. 651, 656, 614 P.2d 209, review denied, 94 Wn.2d 1022 (1980); see also Tesoro Ref. & Mktg. Co. v. Dep’t of Revenue, 164 Wn.2d 310, 320, 190 P.3d 28 (2008) (stating that the fact that a party can conceive of an alternative interpretation does not render the statute ambiguous); Cerrillo v. Esparza, 158 Wn.2d 194, 203-04, 142 P.3d 155 (2006) (stating that “[f]or a statute to be ambiguous, two reasonable interpretations must arise from the language of the statute itself, not from considerations outside the statute”).

¶5 Understandably, whether a locomotive falls within the statutory definition of “any railway car” is an issue of first impression. First, we observe that under the plain language of RCW 9A.04.110(5), the entering or remaining with an intent to commit a crime in “any . . . railway car” is a violation of RCW 9A.52.030. (Emphasis added.) “Any” refers to “one, some, or all indiscriminately of whatever quantity” or “the maximum or whole of a number or quantity.” Webster’s Third New International Dictionary 97 (2002).

¶6 Applying these principles, the term “any . . . railway car” includes a locomotive of the sort at issue here. Although Webster’s Dictionary does not define “railway car,” it does define “railroad car”: “[A] vehicle adapted to the rails of a railroad ... and used for carrying passengers and mail, baggage, freight, or other things.” Webster’s Third New International Dictionary 1876,334 (2002) (emphasis added). A locomotive is a vehicle that is designed to travel on railroad tracks and it carries many “things” including but not limited to an engine, fuel to propel the locomotive and other railway cars, and a conductor, and thus qualifies as a “railway car.”

¶7 In addition, a locomotive also meets the definition of a “railway car” as articulated by our Supreme Court in a previous version of the statute. Our Supreme Court appeared to limit the definition of “railway car” by excluding flatcars in an earlier version of the statute in State v. Petit, 32 Wash. 129, 130-31, 72 P. 1021 (1903):

[Flat] cars, it seems to us, do not come within the definition given by the statute, which evidently had relation to box cars, or some kind of a car that is inclosed so that an entry can be made. Under the ordinary understanding of the words “break and enter” it is difficult to see how a person could break and enter a flat car loaded with wheat upon which a canvas is laid.

(Emphasis added.) The Petit court’s analysis suggests that the determination of whether something is a “railway car” is whether a structure, which can ride on railroad tracks, is enclosed and can be entered. But the legislature’s subsequent codification of a new definition of “building,” including the addition of a “fenced area,” undermines Petit’s implied enclosure element. Laws of 1975, 1st Ex. Sess., ch. 260. Regardless, a locomotive is a fully-enclosed structure that travels on railroad tracks and, therefore, qualifies as a “railway car” under the Petit court’s analysis.

¶8 Moreover, even if a locomotive is not a railway car, it still qualifies as a “building” for the purposes of second degree burglary. Here, the trial court instructed the jury that “[t]he term ‘building,’ in addition to its ordinary meaning, includes any railway car.” Clerk’s Papers (CP) at 18 (emphasis added). When analyzing the general understanding of “building” under the burglary statute, Washington courts have determined that structures or premises that are (1) enclosed, (2) large enough to enter, and (3) able to accommodate a human being definitively qualify as a “building.” State v. Miller, 91 Wn. App. 869, 872-73, 960 P.2d 464 (1998), review denied, 137 Wn.2d 1012 (1999); State v. Deitchler, 75 Wn. App. 134, 138 nn.5&6, 876 P.2d 970 (1994), review denied, 125 Wn.2d 1015 (1995). Here, the locomotive was fully enclosed with outside doors that allowed access to an interior area that could accommodate a human being. Therefore, the locomotive at issue here also qualified as a “building,” under its ordinary meaning, as defined by the legislature in the second degree burglary statute.

¶9 Accordingly, under the plain language of the statutory definition of “building,” which includes “any... railway car,” a locomotive is a railway car and building under RCW 9A.04.110(5) for purposes of second degree burglary. RCW 9A.52.030(1). Johnson’s claim that evidence showing he unlawfully entered the locomotive with the intent to steal copper is insufficient to prove that he entered a “building” as defined in RCW 9A.04.110(5) and, therefore, is insufficient to support the jury’s verdict finding him guilty of second degree burglary fails.

Evidence Admissibility

¶10 Johnson also argues that the trial court abused its discretion in admitting a receipt showing that he sold 105 pounds of copper wire to Valley Recycling the day before his arrest. He characterizes the evidence as irrelevant or as a prior bad act inadmissible under ER 404(b). We disagree.

¶11 We review the admission of evidence under ER 404(b) for an abuse of discretion. State v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007). The trial court abuses its discretion when its decision is manifestly unreasonable or rests on untenable grounds or reasons. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). Under ER 404(b), “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” (Emphasis added.)

¶12 To convict Johnson of second degree burglary as charged, the State was required to prove beyond a reasonable doubt that Johnson entered the railway car intending to commit theft. Assuming, which we do not, that the sales receipt for copper wire was character evidence¹ and not, as the trial court found, documentary evidence of a copper sale Johnson made the day before his arrest, the trial court admitted the receipt as circumstantial evidence of Johnson’s motive or intent and instructed the jury on the limits of its use.² As such, the evidence was both relevant and admissible under ER 404(b) and the trial court did not abuse its discretion by admitting it.

Sufficiency of Evidence

¶13 Last, Johnson challenges the sufficiency of the evidence supporting his conviction. We hold sufficient evidence exists and affirm.

¶14 The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational jury could find the essential elements of a crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). All reasonable inferences from the evidence must be drawn in favor of the verdict and interpreted strongly against the defendant. Salinas, 119 Wn.2d at 201. “A claim of insufficiency admits the truth of the State’s evidence and all inferences that reasonably can be drawn” from it. Salinas, 119 Wn.2d at 201. Circumstantial evidence is no less reliable than direct evidence and “specific criminal intent of the accused may be inferred from the conduct where it is plainly indicated as a matter of logical probability.” State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). The jury is the sole and exclusive judge of the evidence. State v. Bencivenga, 137 Wn.2d 703, 709, 974 P.2d 832 (1999). Our role as the reviewing court is not to reweigh the evidence and substitute our judgment for that of the jury. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). Instead, we defer to the jury’s resolution of conflicting testimony, evaluation of witness credibility, and decisions regarding the persuasiveness of evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).

¶15 Here, while on routine patrol of the railroad yard, a Grays Harbor police officer arrested Johnson as he ran from inside a railway car. Inside the locomotive, police found Johnson’s flashlight and a bag with tools (bolt cutters, ratchets, a pipe wrench, and a hammer) necessary to cut and remove copper wire from the locomotive’s interior. The evidence proving Johnson’s guilt on the second degree burglary charge is overwhelming, and we affirm.

Hunt, J., concurs.

1 Johnson cites Foxhoven, 161 Wn.2d at 174, to support his proposition that, although not a prior bad act, the receipt was offered as evidence of his bad character. But in Foxhoven, the court addressed the admissibility of evidence under ER 404(b) to show modus operandi. 161 Wn.2d at 175-79. In contrast, here the court admitted evidence of the sales receipt as evidence of a previous transaction, the sale of 105 pounds of copper wire to Valley Recycling, as evidence of intent and motive.

2 The trial court instructed the jury that “[e]vidence has been presented concerning the defendant’s alleged possession of a receipt for sale of copper wire. Such evidence may be considered by you insofar as you believe that it may bear upon the defendant’s intent and motive in this matter and for no other purpose.” CP at 20.