State v. Moreno ( 2021 )

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
IN CLERK’S OFFICE NOVEMBER 24, 2021
SUPREME COURT, STATE OF WASHINGTON
NOVEMBER 24, 2021
ERIN L. LENNON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) No. 99147-2
Respondent, )
)
v. ) En Banc
)
FRANCISCO RUBEN MORENO, )
)
Petitioner. )
) Filed : 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.
State v. Moreno, No. 99147-2
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.
1
The Washington Association of Criminal Defense Lawyers filed an amicus brief in
support of Moreno.
2
State v. Moreno, No. 99147-2
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
2
Moreno was also charged with two counts of second degree unlawful possession of a
firearm. He pleaded guilty to one charge, and the court dismissed the other charge.
3
State v. Moreno, No. 99147-2
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, 14 Wn.
4State v. Moreno, No. 99147-2
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
5
State v. Moreno, No. 99147-2
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.
6
State v. Moreno, No. 99147-2
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).
3
The three statutes defining the various degrees of burglary have identical language with
regard to the requirements that an accused “enters or remains unlawfully” with an “intent to
commit a crime against a person or property.” See RCW 9A.52.020(1), .025(1), .030(1). The
main differences in these statutes is the type of burglarized premises and the presence of
aggravating circumstances.
7
State v. Moreno, No. 99147-2
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
burglary statute or any case invalidating such a statute on the basis that it does not
contain an additional mens rea element.
4
The “to convict” Washington pattern jury instruction for first degree burglary given in
this case mirrors the statutory language:
“To convict the defendant of the crime of burglary in the first degree, each of the
following elements of the crime must be proved beyond a reasonable doubt:
“(1) That on or about (date) the defendant entered or remained unlawfully in a
building;
“(2) That the entering or remaining was with intent to commit a crime against a
person or property therein;
“(3) That in so entering or while in the building or in immediate flight from the
building [the defendant] [or] [an accomplice in the crime charged] [was armed
with a deadly weapon] [or] [assaulted a person]; and
“(4) That any of these acts occurred in the State of Washington.” 11A WASHINGTON
PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 60.02, at 5 (5th ed.
2021).
8
State v. Moreno, No. 99147-2
We have not analyzed whether a defendant’s knowledge of the unlawfulness
of their entering or remaining is an implied essential element of first degree
burglary. The Court of Appeals in Kilponen rejected a defendant’s argument that
jury instructions were constitutionally deficient by omitting such an implied
element. State v. Kilponen, 47 Wn. App. 912, 737 P.2d 1024 (1987). First, the
Court of Appeals noted that it need not consider this argument because the
defendant had invited the error. Nonetheless, the court proceeded to analyze the
argument, concluding that “RCW 9A.52.020 does not require the State to prove the
defendant knew he was acting unlawfully.” Kilponen, 47 Wn. App. at 919. Instead,
the court concluded that an intent to commit a crime is the only mens rea element
in the first degree burglary statute. Kilponen, 47 Wn. App. at 919.
Although this court has not directly addressed whether knowledge of the
unlawfulness of the entering or remaining is an essential element of first degree
burglary, we have noted that the “[t]he intent required by our burglary statutes is
simply the intent to commit any crime against a person or property inside the
burglarized premises.” State v. Bergeron, 105 Wn.2d 1, 4, 711 P.2d 1000 (1985).
Combining that description of the mens rea in the statute with the analysis in
Kilponen, the Court of Appeals in this case concluded that the plain language of
9
State v. Moreno, No. 99147-2
the statute defining first degree burglary shows that no additional mens rea
requirement impliedly exists. 5 We agree.
The surrounding provisions in chapter 9A.52 RCW confirm the conclusion
that burglary has no additional implied mens rea element. For any burglary charge,
if an accused entered or remained unlawfully, a permissible inference arises that
the accused acted with the requisite criminal intent to commit a crime unless other
evidence is presented. RCW 9A.52.040. 6 This statutory inference is permitted
without requiring that the defendant know that their entering or remaining was
unlawful. Also, criminal trespass is the only crime in chapter 9A.52 RCW that the
legislature statutorily provided defenses, including that an accused “reasonably
believed that the owner of the premises, or other person empowered to license
access thereto, would have licensed him or her to enter or remain.” RCW
9A.52.090(3). This defense is related to the element of criminal trespass that a
5
The Court of Appeals also rejected Moreno’s argument that because knowledge of the
unlawfulness of entering or remaining is a statutory element of first degree criminal trespass,
then it is also an element of first degree burglary. The court declined to follow the reasoning in
State v. Soto, 45 Wn. App. 839, 727 P.2d 999 (1986), which concluded that first degree criminal
trespass was a lesser included offense of second degree burglary. Because this case involves a
challenge to the adequacy of the charging document and jury instructions, and since Moreno did
not request a lesser included instruction for criminal trespass, we need not address any claimed
conflict between the elements of burglary and criminal trespass.
6
The statute provides the following: “In any prosecution for burglary, any person who
enters or remains unlawfully in a building may be inferred to have acted with intent to commit a
crime against a person or property therein, unless such entering or remaining shall be explained
by evidence satisfactory to the trier of fact to have been made without such criminal intent.”
10
State v. Moreno, No. 99147-2
defendant “know” that their entering or remaining was unlawful. See RCW
9A.52.070(1). The general statutory definition of “knowledge” states:
A person knows or acts knowingly or with knowledge when:
(i) He or she is aware of a fact, facts, or circumstances or result
described by a statute defining an offense; or
(ii) He or she has information which would lead a reasonable
person in the same situation to believe that facts exist which facts are
described by a statute defining an offense.
RCW 9A.08.010(1)(b) (emphasis added). Therefore, the defense that an accused
has a reasonable belief that their entering or remaining was lawful excuses a
criminal trespass because it shows an accused lacked knowledge of the
unlawfulness of their entering or remaining. Were that defense to apply to
burglary, it could support the conclusion that knowledge of unlawfully entering or
remaining is also an essential element of burglary. But this reading does not
comport with the intent to commit a crime element for first degree burglary.
Again, we have not directly analyzed whether this defense is available to any
burglary charge, but in State v. Montague, 10 Wn. App. 911, 521 P.2d 64 (1974),
the Court of Appeals considered a defendant’s argument that the trial court should
have allowed him to present a jury instruction to a former first degree burglary
statute 7 that it was a defense if the defendant reasonably believed that the owner of
7
The prior version of the statute defined the crime in relevant part as “[e]very person
who, with intent to commit some crime therein, shall enter in the night time, the dwelling house
of another.” LAWS OF 1909 ch. 249, § 326 (codified as former RCW 9.19.010 (1909)).
11
State v. Moreno, No. 99147-2
the home consented to the defendant burglarizing the home. While observing that
the mens rea element for burglary was the intent to commit a crime, the court also
highlighted that a defendant who “unlawfully” entered raised a rebuttable
presumption that the defendant had an intent to commit a crime. LAWS of 1909, ch.
249, § 328 (codified as former RCW 9.19.030 (1909)). Thus, the court stated that
unlawful entry “implies the existence of a ‘guilty mind,’” which might be negated
by the defendant’s reasonable belief he was authorized to be in the home.
Montague, 10 Wn. App. at 918. But the court held the defendant’s alleged
reasonable belief lacked good faith because the defendant would have been a
participant in a crime even assuming he had consent to burglarize the home.
Montague’s statement that unlawful entry presumes a “guilty mind” under
the former statutory scheme governing burglary does not apply under the current
definitions of burglary to show that knowledge is required for unlawfully entering
or remaining. First, the presumption of criminal intent from unlawful entry under
the former statute, former RCW 9.19.030, was revised to include a permissible
inference of intent in the current statutory scheme. See RCW 9A.52.040. This
change breaks the connection between these elements. Moreover, the former
statutory scheme provided no definition of unlawful entry, but the current scheme
provides a definition of unlawfully entering or remaining that does not include any
mens rea element. RCW 9A.52.010(2). It follows that the inference that an accused
12
State v. Moreno, No. 99147-2
acts with criminal intent when they unlawfully entered or remained does not
similarly show that a “guilty mind” is required for unlawfully entering or
remaining under the current scheme.
Although the various divisions of the Court of Appeals appear to differ
regarding whether the statutory defenses to criminal trespass are available for a
burglary charge under the current statutory scheme, these cases all demonstrate
that knowledge of the unlawfulness of entering or remaining is not an implied
essential element of burglary because they conclude that the statutory definition of
unlawfully entering or remaining, which does not contain a mens rea element, is
controlling for a burglary charge. RCW 9A.52.010(2).
Division Three of the Court of Appeals has concluded the reasonable belief
defense to criminal trespass could negate the unlawful entering or remaining
element for a burglary charge. State v. Ayala Ponce, 166 Wn. App. 409, 269 P.3d
408 (2012). However, in Ponce, the court reasoned that the “to convict” jury
instructions correctly stated the law by mirroring the statutory definition of the
element of unlawfully entering or remaining. Because the instructions did not
prevent the defendant from arguing he had a reasonable belief that he was
permitted in the building, the court found no error in failing to give the instruction
on the reasonable belief defense. See also State v. Cordero, 170 Wn. App. 351,
370, 284 P.3d 773 (2012) (clarifying that as long as the instructions correctly
13
State v. Moreno, No. 99147-2
informed the jury of the applicable law on burglary, then a defendant was not
entitled to a jury instruction on a statutory defense to criminal trespass).
Division Two of the Court of Appeals has concluded the statutory defenses
to criminal trespass should not be provided for any burglary charge. State v.
Jensen, 149 Wn. App. 393, 401, 203 P.3d 393 (2009). In Jensen, the court
emphasized that the statute’s plain language explicitly applies those defenses only
to criminal trespass. RCW 9A.52.090 (“In any prosecution under RCW 9A.52.070
[describing first degree criminal trespass] and 9A.52.080 [describing second
degree criminal trespass], it is a defense that . . . .”). The court declined to expand
those statutory defenses to other crimes. Jensen, 149 Wn. App. at 401. 8
Jensen’s conclusion that the statutorily enumerated defenses to criminal
trespass, including a reasonable belief that one is authorized to enter or remain, do
not apply to a burglary charge supports our decision that knowledge of the
unlawfulness of the entering or remaining is not an element of first degree
burglary.
To the extent that Division Three cases suggest otherwise, they hold that as
long as the “to convict” instruction uses the statutory definition of unlawfully
entering or remaining, then no error exists because juries are apprised of the
8
Division One of the Court of Appeals has agreed with Jensen’s analysis. State v. Olson,
182 Wn. App. 362, 377, 329 P.3d 121 (2014).
14
State v. Moreno, No. 99147-2
applicable law and the defendant is able to argue their theory of the case. 9 Thus, all
these cases support the conclusion that knowledge of unlawfully entering or
remaining is not an implied element because they recognize that the statutory
language for unlawfully entering or remaining controls, which includes no
knowledge requirement as applied to a burglary charge.
But Moreno makes three arguments in support of his contention that we
should imply an element of knowledge of the unlawfulness of entering or
remaining into the first degree burglary statute. First, Moreno argues that the
presumption in favor of mens rea supports his view that the State must prove
knowledge that the entering or remaining was unlawful for first degree burglary.
Suppl. Br. of Pet’r at 5-7. Generally, conduct must be accompanied by “culpable
state of mind” in order to be considered criminal. Morissette v. United States, 342
U.S. 246, 250, 72 S. Ct. 240, 96 L. Ed. 288 (1952). As previously noted, we
normally imply mens rea elements when a constitutional infirmity exists in a strict
liability criminal statute, such as when a mens rea element is necessary to avoid
criminalizing otherwise innocent conduct. See, e.g., State v. Williams, 158 Wn.2d
904, 908-16, 148 P.3d 993 (2006) (reading in a mens rea requirement to unlawful
possession of a firearm pursuant to RCW 9.41.190(1)); State v. Anderson, 141
9
Significantly, Moreno does not show that he was unable to argue his theory that he was
in the townhome lawfully, and the jury was provided with the instructions that mirrored the
language of the statute for unlawfully entering or remaining.
15
State v. Moreno, No. 99147-2
Wn.2d 357, 360-67, 5 P.3d 1247 (2000) (same for RCW 9.41.040)). Because the
first degree burglary statute requires proof of an intent to commit a crime, these
cases alone do not provide a basis to analyze whether first degree burglary requires
knowledge that the entry and remaining is unlawful in addition to requiring intent
to commit a crime. We are not persuaded an additional mens rea element is
required.
In support of a broader view of how the presumption of mens rea may still
apply to statutes containing a mens rea element, Moreno cites to United States
Supreme Court cases involving statutory interpretation of a general “knowledge”
requirement, where the Court has highlighted “that the presumption in favor of a
scienter requirement should apply to each of the statutory elements that criminalize
otherwise innocent conduct.” United States v. X-Citement Video, Inc., 513 U.S. 64,
72, 115 S. Ct. 464, 130 L. Ed. 2d 372 (1994). But here, given that burglary requires
intent to commit a criminal act, innocent conduct is lacking.
The Court applied this principle to a federal statute that made it a crime to
“‘knowingly’” violate the prohibition on various persons, including those aliens
who are “‘illegally or unlawfully in the United States,’” from possessing a firearm.
Rehaif v. United States, 588 U.S. ___, 139 S. Ct. 2191, 2194, 204 L. Ed. 2d 594(2019) (quoting 18 U.S.C. §§ 924(a)(2) (emphasis omitted), 922(g)(5)(A)). The
Court recognized that the presumption in favor of mens rea “applies with equal or
16
State v. Moreno, No. 99147-2
greater force when Congress includes a general scienter provision in the statute
itself.” Rehaif, 139 S. Ct. at 2195. The Court concluded the statute required proof
that the defendant knew they possessed a firearm and knew they were in the United
States illegally or unlawfully. The Court reasoned if it did not apply knowledge to
each element in the statute, then the statute would punish innocent conduct. If one
did not know of their status as being illegally or unlawfully in the United States,
then they could still be convicted of the crime even if they were partaking in the
entirely innocent conduct of possessing a gun with appropriate licensing. Rehaif,
139 S. Ct. at 2197. The defendant’s “status is the ‘crucial element’ separating
innocent from wrongful conduct.” Rehaif, 139 S. Ct. at 2197 (quoting X-Citement
Video, 513 U.S. at 73). The Court distinguished other statutes involving a “status”
element because the prohibited conduct, such as misappropriation of the
government information by a government employee or contractor, would be
wrongful regardless of the defendant’s status. See 18 U.S.C. § 1924(a).
Based on these cases, Moreno argues that the presumption of mens rea
“applies to each essential element of an offense.” Suppl. Br. of Pet’r at 6. However,
Moreno reads these cases too broadly, and we reject this reasoning. First, these
cases involved interpreting a general knowledge requirement, modifying the whole
statute or set out at the beginning of a statute, and the extent to which it applied to
different elements of the statute. Unlike those statutes, Moreno does not show that
17
State v. Moreno, No. 99147-2
the intent to commit a crime under the first degree burglary statute also modifies
the element of unlawfully entering or remaining.
Moreover, unlawfully entering or remaining in the first degree burglary
statute is not the crucial element differentiating between wrongful and innocent
conduct like the defendant’s status in Rehaif. Assuming a person does not know
that their presence is unauthorized, the State is still required to prove the intent to
commit a crime. Intent to commit a criminal act is wrongful conduct unlike
possession of a firearm in Rehaif. And as the State points out, knowledge was
attached to the unlawfully entering or remaining element of criminal trespass
because that statute would otherwise have no mens rea requirement. See, e.g.,
RCW 9A.52.070(1); Suppl. Br. of Resp’t at 8.
Amicus argues that unlawfully entering or remaining is the element that
differentiates between whether conduct constitutes the felony of first degree
burglary or a misdemeanor. Br. of WACDL (Wash. Ass’n of Criminal Def.
Lawyers) as Amicus Curiae at 10-12. Given that a mere intent to commit a crime
on a premises could alone be a misdemeanor, amicus contends that a mens rea
must attach to the unlawfully entering or remaining element because that element
raises the penalty to a felony. But an element that differentiates between a felony
and a misdemeanor is not the same as an element that differentiates between
innocent and criminal conduct. Here, the legislature determined that the element of
18
State v. Moreno, No. 99147-2
unlawfully entering or remaining when accompanied by an intent to commit a
crime should be punished more harshly than a mere intent to commit a crime.
RCW 9A.04.020(1)(d) (stating that it is a purpose of the statutes defining criminal
offenses “[t]o differentiate on reasonable grounds between serious and minor
offenses, and to prescribe proportionate penalties for each”).
Our cases presenting similar issues of statutory construction support this
conclusion. For example, in State v. Brown, we rejected an argument to imply an
element to third degree assault of a police officer that a defendant know the victim
was an officer and that the officer was performing their duties at the time of the
assault. 140 Wn.2d 456, 467, 998 P.2d 321 (2000) (citing RCW 9A.36.031(1)(g)).
In that case, while the State needed to prove that a defendant intended to assault
the victim, we concluded the plain language of the statute did not include a
requirement that the defendant know that the victim was a police officer or
performing their duties. We noted that the legislature had included knowledge of
the victim being a police officer in other statutes, and that the legislature was
permitted to make a choice not to include it in the third degree assault statute.
Brown, 140 Wn.2d at 469.
Second, Moreno argues that our cases analyzing the unlawfully enters or
remains element and the common law offense of burglary support the existence of
an implied essential element. Suppl. Br. of Pet’r at 8-13. Moreno contends our
19
State v. Moreno, No. 99147-2
cases show that knowledge of a license or privilege and its scope are fundamental
parts of the unlawfully entering or remaining element. Moreno draws on cases
analyzing when a child’s presumptive privilege to be in a home is revoked. State v.
Howe, 116 Wn.2d 466, 805 P.2d 806 (1991). In that case, we reasoned that a
parent can revoke a child’s privilege to be in the family home only “if they (1) do
so expressly and unequivocally, and (2) provide some alternative means of
assuring that the parents’ statutory duty of care is met.” Howe, 116 Wn.2d at 477.
The revocation must “be clearly and unequivocally conveyed to the child.” Howe,
116 Wn.2d at 470.
Moreno also relies on cases analyzing the notice required for a revocation of
an invitation for a premises open to the public. See State v. Kutch, 90 Wn. App.
244, 248-49, 951 P.2d 1139 (1998). However, we find this analysis consistent with
the statutory scheme, which requires notification that a person is not licensed or
privileged in certain situations involving public places. See RCW 9A.52.010(2)
(“A license or privilege to enter or remain on improved and apparently used land
that is open to the public at particular times, which is neither fenced nor otherwise
enclosed in a manner to exclude intruders, is not a license or privilege to enter or
remain on the land at other times if notice of prohibited times of entry is posted in
a conspicuous manner.”).
20
State v. Moreno, No. 99147-2
Moreno further argues that cases involving implied limitations on invitations
show the importance of knowledge of the unlawfulness of the entering or
remaining. State v. Collins, 110 Wn.2d 253, 261, 751 P.2d 837 (1988). In Collins,
we held that an implied limitation on or revocation of a license may exist
depending on the circumstances. In that case, a defendant was invited into a home
to use a phone without express limits on the scope of that license but then
committed a rape and assault once he entered the home. We noted other cases in
which an apparently general invitation to enter was provided, but the “limitation
was plain from the circumstances, and was sufficient to support [a] burglary
conviction.” Collins, 110 Wn.2d at 260. We held the invitation was limited to the
use of the phone only, and therefore the defendant’s entering or remaining was
unlawful by exceeding the scope of the invitation. The defendant’s license was
essentially revoked once he began assaulting the two victims, and we affirmed the
burglary conviction.
The cases involving revocation of a child’s license to be in a family home
are not fully applicable to adults like Moreno based on the unique aspects of the
parent-child relationship. Moreover, in these cases, a license or privilege to enter is
granted, which would tend to negate the element of entering or remaining
unlawfully needed for burglary. A revocation of that license or privilege has the
effect of turning someone’s presence from lawful to unlawful, which is why notice
21
State v. Moreno, No. 99147-2
is required. On the other hand, when a license or privilege is never granted, no
notice of revocation is required because no authorization exists in the first place.
To the extent that these cases discuss a notice requirement, we find that reasoning
inapplicable here because they involve revocation of an existing license or
privilege.
Next, Moreno argues that the common law definition of burglary shows that
knowledge of the unlawfulness of entering and remaining is an implied essential
element. The common law supplements our criminal statutes but only to the extent
that the common law is not inconsistent with a statute. RCW 9A.04.060. Under the
common law, burglary was once defined “to be the breaking and entering of the
dwelling house of another in the nighttime with the intent to commit a felony.”
State v. Engel, 166 Wn.2d 572, 579, 210 P.3d 1007 (2009) (citing 3 WAYNE R.
LAFAVE & AUSTIN W. SCOTT, JR., SUBSTANTIVE CRIMINAL LAW § 21.1 (2d ed.
2003)). But statutory offenses defining burglary have significantly changed the
elements of burglary, and the “modern-day offense commonly known as burglary
bears little relation to its common-law ancestor.” 3 WAYNE R. LAFAVE,
SUBSTANTIVE CRIMINAL LAW § 21.1, at 268 (3d ed. 2018 & Supp. 2020).
In Bergeron, for example, we held that an intent to commit a specific crime
was not required under our statutory definitions for burglary. 105 Wn.2d at 14-15.
Although the common law definition may have supported the opposite conclusion,
22
State v. Moreno, No. 99147-2
we emphasized that the statutory definition of burglary required only an intent to
commit any crime. We reasoned that where “‘a statute is plain and unambiguous, it
must be construed in conformity to its obvious meaning without regard to the
previous state of the common law.’” Bergeron, 105 Wn.2d at 15 (quoting State ex
rel. Madden v. Pub. Util. Dist. No. 1, 83 Wn.2d 219, 222, 517 P.2d 585 (1973)).
Nonetheless, Moreno points to the “breaking and entering” element of
common law burglary, “which requires that the burglar intentionally engage in the
conduct of breaking and entering, and perhaps also that he intend that the building
thus broken into be a dwelling house.” 1 WAYNE R. LAFAVE, SUBSTANTIVE
CRIMINAL LAW § 5.2(a), at 458 (3d ed. 2018 & Supp. 2020). However, the
concepts of breaking and nighttime entry were removed from the current statutory
definition of burglary. 10 Moreno argues that we considered the breaking and
entering element of common law burglary in Engel. Suppl. Br. of Pet’r at 10-11.
But Engel utilized the common law definition of burglary to analyze what was
considered a “fenced area,” which was necessary because the statute did not
provide a definition. 166 Wn.2d at 579-80. Here, we have a statutory definition of
unlawfully entering and remaining. RCW 9A.52.010(2). The common law crime of
10
The concepts of breaking and nighttime entry were initially part of the statutory
definitions of either first degree or second degree burglary. See LAWS OF 1909, ch. 249, §§ 326,
327 (codified as former RCW 9.19.010, .020).
23
State v. Moreno, No. 99147-2
burglary does not support Moreno’s contention that we should rewrite the current
statutory definitions.
Last, Moreno contends that because first degree criminal trespass has been
considered by some cases as a lesser included offense of first degree burglary,
knowledge of the unlawfulness of entering or remaining is an implied essential
element of burglary. 11 The parties dedicate significant discussion to the mental
elements of criminal trespass and burglary. But the State contends that we need not
address whether criminal trespass is a lesser included offense of burglary because
Moreno never sought a lesser included instruction, which means that anything we
would decide on that issue would be dicta. Suppl. Br. of Resp’t at 16-17; State ex
rel. Lemon v. Langlie, 45 Wn.2d 82, 89, 273 P.2d 464 (1954).
The State is correct that a decision on whether first degree criminal trespass
is a lesser included offense is not necessary to deciding this case. The only issue
presented by this case is whether knowledge of the unlawfulness of entering or
remaining is an implied essential element of first degree burglary. We affirm the
Court of Appeals and hold that such knowledge is not an implied element of first
degree burglary based on the plain language of the first degree burglary statute. We
conclude the cases suggesting that criminal trespass is a lesser included offense of
11
See, e.g., Olson, 182 Wn. App. at 375; State v. J.P., 130 Wn. App. 887, 895, 125 P.3d
215 (2005); State v. Allen, 127 Wn. App. 945, 950, 113 P.3d 523 (2005); Soto, 45 Wn. App. at
841.
24
State v. Moreno, No. 99147-2
burglary have no bearing on the analysis of whether an implied element to burglary
is constitutionally required.
Johnson, J.
WE CONCUR:
25
State v. Moreno, No. 99147-2 (González, C.J., concurring)
No. 99147-2
GONZÁLEZ, C.J. (concurring) – I concur with the majority. I write separately
to stress that trespass and burglary are different crimes with different mental states.
At its core, burglary is entering or unlawfully remaining on someone else’s
property with the intent to commit a different crime there. The mental state for
burglary is the intent to commit some other crime. Trespass, however, is entering
or remaining on someone else’s property knowing it is unlawful to do so. The
mental state for trespass is knowing there is no authority to be on someone else’s
property and entering or remaining anyway. These crimes might overlap as a
matter of fact, but as a matter of law they are distinct. I would take this
opportunity to make that clear.
A lesser included offense of a charged offense is established if “each of the
elements of the lesser offense” is “a necessary element of the offense charged” and
if “the evidence in the case . . . support[s] an inference that the lesser crime was
committed.” State v. Berlin, 133 Wn.2d 541, 545-46, 947 P.2d 700 (1997)
(emphasis added) (citing and reinstating the rule set forth in State v. Workman, 90
Wn.2d 443, 447-48, 584 P.2d 382 (1978)). Under Workman, trespass is not a
lesser included offense of burglary because trespass requires the person to
knowingly enter or remain unlawfully, and burglary does not.
1
State v. Moreno, No. 99147-2 (González, C.J., concurring)
It is true that both trespass and burglary contain a mens rea element, but
these mens rea elements do not relate to the same action. I recognize that in State
v. Soto, the Court of Appeals held that trespass is a lesser included offense of
burglary because proof of intent, required in burglary, is a higher mens rea than the
knowledge required in criminal trespass. 45 Wn. App. 839, 840-41, 727 P.2d 999(1986); compare RCW 9A.52.070(1) (a “person is guilty of criminal trespass in the
first degree if he or she knowingly enters or remains unlawfully in a building”
(emphasis added)), with RCW 9A.52.020(1) (a “person is guilty of burglary . . . if,
with intent to commit a crime against a person or property therein, he or she enters
or remains unlawfully in a building” (emphasis added)). But Soto was incorrect
because the mens rea of burglary corresponds to a different action than knowledge
does in trespass. 1 See State v. Gamble, 154 Wn.2d 457, 468, 114 P.3d 646 (2005)
(for a lesser included offense, the mens rea must pertain to the same conduct); see
also State v. Numrich, 197 Wn.2d 1, 15, 480 P.3d 376 (2021).
With these observations, I respectfully concur.
1
Moreno argued that this court held trespass is a lesser included offense in State v. Southerland,
but, based on the arguments presented, Southerland presumed error and focused on prejudice.
109 Wn.2d 389, 390-91, 745 P.2d 33 (1987). It did not independently analyze the elements of
the crimes.
2
State v. Moreno (Francisco Ruben)
No. 99147-2
MADSEN, J. (concurring)—I agree with the majority that knowledge is not an
implied, essential element of burglary. However, I go on to analyze whether proof that
the defendant entered or remained in a building with intent to commit a crime is
sufficient to prove that the defendant knowingly entered or remained in the building
unlawfully. I believe that it does, and therefore, I write separately to state that in my
view, criminal trespass is a lesser included offense of burglary.
For the court to instruct on a lesser included offense, each of the elements of the
lesser offense must be a necessary element of the offense charged and the evidence in the
case must support an inference that the lesser crime was committed. State v. Workman,
90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). If it is possible to commit the greater
offense without committing the lesser offense, the lesser offense is not an included
offense. State v. Stevens, 158 Wn.2d 304, 315, 143 P.3d 817 (2006).
Chapter 9A.52 RCW governs both burglary and trespass offenses. Criminal
trespass in the first degree requires the defendant to knowingly enter or remain
unlawfully in a building. RCW 9A.52.070(1). Burglary requires that the defendant “with
No. 99147-2
Madsen, J., concurring
intent to commit a crime against a person or property therein . . . enters or remains
unlawfully in a building other than a vehicle or a dwelling.” RCW 9A.52.030(1). 1
In evaluating whether criminal trespass is a lesser included offense of burglary, it
must not be possible to commit burglary without also committing criminal trespass.
Burglary requires proof that an individual entered or remained unlawfully in a building
with intent to commit a crime against a person or property. When an individual enters
into a building with intent to commit a crime against a person or property, or develops
that intent while inside the building, they are in the building unlawfully. Although that
individual’s presence may have been lawful absent the intent to commit a crime, it is the
intent to commit a crime that renders the entering or remaining unlawful. Thus, an
individual who enters or remains in a building with intent to commit a crime necessarily
has the intent to enter or remain unlawfully. This means a person may enter a building
lawfully, but remaining in the building may become unlawful either because that person
develops an intent to commit a crime or, in the case of trespass, for some other reason,
such as being asked to leave by a rightful owner.
Under the hierarchy of mental states, “[w]hen acting knowingly suffices to
establish an element, such element also is established if a person acts intentionally.”
RCW 9A.08.010(2); see State v. Shipp, 93 Wn.2d 510, 518, 610 P.2d 1322 (1980); State
v. Thomas, 98 Wn. App. 422, 425, 989 P.2d 612 (1999). Thus, proof that an individual
1
This is the standard for second degree burglary. First degree burglary has the same standard,
but it also requires the additional element that the person is either armed with a deadly weapon or
assaults any person. RCW 9A.52.020(1).
2
No. 99147-2
Madsen, J., concurring
intends to enter or remain unlawfully in a building is sufficient to prove that the
individual enters or remains knowingly. Accordingly, each of the elements of criminal
trespass is a necessary element of burglary, making criminal trespass a lesser included
offense.
Washington courts have consistently recognized trespass as a lesser included
offense of burglary. See, e.g., State v. Garcia, 179 Wn.2d 828, 849, 318 P.3d 266 (2014)
(noting that a conviction for burglary required the defendant to not only trespass but also
intend to commit a crime inside the building); State v. Allen, 101 Wn.2d 355, 359, 678
P.2d 798 (1984) (stating the defendant’s state of mind is the element separating burglary
from the lesser included offense of criminal trespass); State v. Southerland, 109 Wn.2d
389, 390, 745 P.2d 33 (1987) (agreeing with the Court of Appeals’ legal analysis that first
degree criminal trespass is a lesser included offense of first degree burglary); State v.
Olson, 182 Wn. App. 362, 375, 329 P.3d 121 (2014) (“Criminal trespass in the first
degree is a lesser included offense of burglary in the second degree.”); State v. Allen, 127
Wn. App. 945, 951, 113 P.3d 523 (2005) (stating that there is no question that each
element of first degree criminal trespass is a necessary element of burglary); State v. J.P.,
130 Wn. App. 887, 895, 125 P.3d 215 (2005) (“Criminal trespass is a lesser included
offense of burglary”); State v. Soto, 45 Wn. App. 839, 841, 727 P.2d 999 (1986) (noting
that “proof of second degree burglary is necessarily proof of first degree criminal
trespass” because burglary has a higher mental state requirement); State v. Mounsey, 31
3
No. 99147-2
Madsen, J., concurring
Wn. App. 511, 517-18, 643 P.2d 892 (1982) (holding that first degree criminal trespass is
a lesser included offense of first degree burglary).
This court applied similar logic when analyzing whether second degree criminal
trespass is a lesser included offense of second degree vehicle prowling. State v. Joseph,
189 Wn.2d 645, 405 P.3d 993 (2017). In Joseph, we concluded that second degree
trespass is a lesser included offense of second degree vehicle prowling. Id. at 653. The
elements for second degree vehicle prowling parallel the elements of second degree
burglary. RCW 9A.52.100(1) (“A person is guilty of vehicle prowling in the second
degree if, with intent to commit a crime against a person or property therein, he or she
enters or remains unlawfully in a vehicle other than a motor home.”). The only
difference is that the individual enter or remain unlawfully, with intent to commit a
crime, in a vehicle rather than a building. The court held that second degree criminal
trespass may occur when an individual knowingly enters or remains unlawfully in a
vehicle. Joseph, 189 Wn.2d at 653. The only difference between the statutes applied in
Joseph and the present case is the location where the unlawful entering or remaining took
place. Thus, by concluding that second degree trespass is a lesser included offense of
second degree vehicle prowling, the court affirmed that intent to commit a crime in a
location (vehicle or dwelling) is sufficient to meet the knowledge requirement in the
criminal trespass statute.
In this case, Moreno argued that the charging documents and jury instructions
were constitutionally deficient because they omitted an implied essential element of
4
No. 99147-2
Madsen, J., concurring
knowledge of the unlawfulness of entering or remaining for first degree burglary. I agree
with the majority that knowledge is not an implied essential element of burglary.
Additionally, for the reasons discussed, I would hold that the element of knowledge of
unlawfulness is satisfied if the State can prove that the defendant entered or remained
unlawfully with intent to commit a crime. Accordingly, I would reaffirm that criminal
trespass is a lesser included offense of burglary.
With these observations, I concur.
___________________________________
5
State v. Moreno (Francisco Ruben), No. 99147-2
(Gordon McCloud, J., concurring)
No. 99147-2
GORDON McCLOUD, J. (concurring)—I concur with the bulk of the
majority’s opinion and with its conclusion. I disagree, however, with its reliance
on the decision in State v. Montague, 10 Wn. App. 911, 521 P.2d 64 (1974), to
reach its conclusion. Majority at 11-12. The Montague court approved of an
instruction telling the jury that if it believed the defendant entered unlawfully, then
it “shall”—a mandatory command—presume that the defendant had the intent to
commit a crime within— “unless such . . . unlawful entry shall be explained by
testimony satisfactory to the jury . . . .” 10 Wn. App. at 915 (emphasis
omitted). The Montague court’s analysis has certainly been superseded by the
United States Supreme Court’s decision on the same issue (of presumptions as
mandatory as the one in Montague) five years later in Sandstrom v. Montana, 442
U.S. 510, 514-19, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979).
With these observations, I respectfully concur.
1