State v. Drum , 168 Wash. 2d 23 ( 2010 )

Madsen, C. J.

¶34 (dissenting) — I agree with the majority that the court here was not bound by Patrick Drum’s stipulation to the legal sufficiency of the evidence and that the trial court was required to independently consider the stipulated evidence. I disagree, however, with the majority when it holds that the judge did not use the statutory inference of criminal intent in RCW 9A.52.040 as a mandatory presumption. Therefore, I dissent.

Discussion

¶35 In State v. Deal, 128 Wn.2d 693, 700, 911 P.2d 996 (1996), this court held that the language “ 'unless such entering or remaining shall be explained by evidence satisfactory to the jury to have been made without such criminal intent’ ” renders an instruction erroneous because the “unless” clause creates a mandatory presumption. We reasoned that the clause requires “the defendant to prove by some quantum of evidence that the inference should not be drawn.” Id. at 701. Later, we reaffirmed our holding in Deal in State v. Cantu, 156 Wn.2d 819, 132 P.3d 725 (2006). In Cantu the prosecutor acknowledged that the court was not required to infer intent but then argued that, absent an explanation from the defendant for being in his mother’s locked bedroom, the court should employ the inference to find the defendant entered or remained unlawfully with the intent to commit a crime. In that case, as here, the defendant entered unlawfully but committed no crime while inside the home. We reversed the conviction in Cantu.

¶36 Here the trial judge specifically indicated that he was relying on the Court of Appeals decision in Cantu. Additionally, the trial judge in this case stated, “I believe that case [Cantu] justifies which, you know, what’s he doing in somebody else’s house anyway . . . unless he’s got the intent to commit a crime.” Verbatim Report of Proceedings at 69. As in Cantu, I believe the judge here required the defendant “to prove, with sufficient evidence, that his intent was innocent.” Cantu, 156 Wn.2d at 828.

¶37 As in Cantu, I would reverse the conviction and remand for further proceedings.

Alexander, Sanders, and Chambers, JJ., concur with Madsen, C.J.