State of Washington v. James David Dunleavy ( 2018 )

FILED
FEBRUARY 6, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 34762-1-III
)
Respondent, )
)
v. ) PUBLISHED OPINION
)
JAMES DAVID DUNLEAVY, )
)
Appellant. )
LAWRENCE-BERREY, A.C.J. — James David Dunleavy appeals his convictions for
second degree burglary and third degree theft. The convictions stem from Dunleavy, then
an inmate at the Walla Walla County jail, going into another inmate’s jail cell and taking
his food. The central issue raised by Dunleavy is whether a jail cell is a separate building
for purposes of RCW 9A.04.110(5). We hold that it is. We affirm Dunleavy’s
convictions, but remand for resentencing so the State can prove Dunleavy’s offender
score.
FACTS
Dunleavy was an inmate at the Walla Walla County jail in Unit E. In Unit E, there
are eight cells capable of housing two inmates per cell. The cells open into a day room.
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In Unit E, the cell doors are open from about 6:00 a.m. until 9:00 p.m. An inmate is
permitted to close his cell door, but if he does, the door will remain locked until opened
the next morning.
Dunleavy was hungry one day, so he asked inmate Kemp LaMunyon for a tortilla.
LaMunyon responded that he did not have enough to share, but would buy more later and
share with Dunleavy at that time. Dunleavy later bullied LaMunyon and threatened to
“smash [him] out.” Report of Proceedings (RP) at 5. Soon after, inmate John Owen
attacked LaMunyon. During the attack, Dunleavy snuck into LaMunyon’s jail cell and
took some of LaMunyon’s food.
LaMunyon was seriously injured by Owen. Jail security investigated the fight and
the theft, and concluded that the two were related. Security believed that Dunleavy
staged the fight between Owen and LaMunyon to give him an opportunity to take
LaMunyon’s food. Because of the seriousness of LaMunyon’s injuries, and because
security concluded that the fight and the theft were related, the jail referred charges to the
local prosecuting authority. The State charged Dunleavy with second degree burglary,
third degree theft, and second degree assault.
The State presented evidence of the jail’s policies through Sergeant Anthony
Robertson. Sergeant Robertson testified that new inmates are informed of the jail’s
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policies when they are booked into jail. Inmates are informed, “first and foremost, they
are not supposed to go into each other’s cell.” RP at 20. Sergeant Robertson explained
that cells are assigned to inmates, and each inmate can expect privacy in their assigned
space. Sergeant Robertson explained that inmates sometimes enter other inmates’ cells
without permission and if a separate crime occurs during the trespass, he will refer the
matter for prosecution as a burglary.
After the State presented its case, Dunleavy moved to dismiss the second degree
burglary charge on the basis that an inmate’s cell is a separate building for purposes of
RCW 9A.04.110(5). The trial court considered the parties’ arguments, denied Dunleavy’s
motion to dismiss, and the case continued forward.
Dunleavy called one witness who testified that Dunleavy did not conspire with
Owen to assault LaMunyon. After closing arguments, the case was submitted to the jury.
The jury began deliberating at 1:30 p.m. At 4:00 p.m., the jury sent a written note
to the trial court through the bailiff. The note asked, “Are the Walla Walla county jail
policies legally binding? Are they considered law? What if we are not unanimous on a
certain count?” Clerk’s Papers (CP) at 5. The trial court, counsel, and Dunleavy
discussed how the trial court should respond. The trial court’s response read, “You are to
review the evidence, the exhibits, and the instructions, and continue to deliberate in order
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to reach a verdict.” CP at 5. No party objected to this response. Less than one hour later,
the jury returned a verdict finding Mr. Dunleavy guilty of second degree burglary and
third degree theft but not guilty of second degree assault.
At sentencing, Dunleavy wrote a letter to the court that his counsel read into the
record. Through this letter, Dunleavy asked for a sentencing alternative rather than the
State’s sentencing recommendation of three to five years’ confinement. The State
represented that Dunleavy had an offender score of 9+. The State did not offer any
evidence of Dunleavy’s prior convictions. Defense counsel did not contest the State’s
representation of Dunleavy’s offender score. The trial court sentenced Dunleavy based
on the State’s representation that Dunleavy had an offender score of 9+.
Dunleavy timely appealed.
ANALYSIS
TRIAL COURT’S RESPONSE TO JURY QUESTIONS NOT MANIFEST ERROR
Dunleavy first argues the trial court violated his constitutional right to a jury trial
by improperly coercing the jury to reach a verdict.
Dunleavy did not preserve this claim of error by objecting below to the trial court’s
response to the jury’s questions. Nevertheless, RAP 2.5(a)(3) permits an appellate court
to review an unpreserved claim of error if it involves a “manifest error affecting a
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constitutional right.” Our RAP 2.5(a)(3) analysis involves a two-prong inquiry. First, the
alleged error must truly be of constitutional magnitude. State v. Kalebaugh, 183 Wash. 2d
578, 583, 355 P.3d 253 (2015). Second, the asserted error must be manifest. Id.
1. Constitutional magnitude
Dunleavy meets the first part of the RAP 2.5(a)(3) test. The state and federal
constitutions protect an accused person’s right to a jury trial. U.S. CONST. amends. VI,
XIV; WASH. CONST. art. I, §§ 21, 22. Among other protections, these provisions secure
“the right to have each juror reach his verdict uninfluenced by factors outside the
evidence, the court’s proper instructions, and the arguments of counsel.” State v.
Boogaard, 90 Wash. 2d 733, 736, 585 P.2d 789 (1978). This right prohibits a judge from
coercing a criminal jury to reach a verdict. Id. at 736-37. Dunleavy’s claim that the trial
court improperly coerced the jury to reach a verdict therefore is truly of constitutional
magnitude. See also State v. Ford, 171 Wash. 2d 185, 188, 250 P.3d 97 (2011).
2. Manifest error
Dunleavy fails to meet the second part of the RAP 2.5(a)(3) test. We construe
“manifest” in a manner that strikes a careful policy balance between requiring objections
to be raised so trial courts can correct errors and permitting review of errors that actually
resulted in serious injustices to the accused. Kalebaugh, 183 Wash. 2d at 583.
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“[M]anifestness ‘requires a showing of actual prejudice.’” Id. at 584 (internal quotation
marks omitted) (quoting State v. O’Hara, 167 Wash. 2d 91, 99, 217 P.3d 756 (2009)). “‘To
demonstrate actual prejudice, there must be a plausible showing . . . that the asserted error
had practical and identifiable consequences in the trial of the case.’” Id. (internal
quotation marks omitted) (quoting O’Hara, 167 Wash. 2d at 99). In addition, such
consequences “‘should have been reasonably obvious to the trial court,’ and the facts
necessary to adjudicate the claimed error must be in the record.” Id. at 588 (quoting
O’Hara, 167 Wash. 2d at 108, 99). By limiting our review of unpreserved constitutional
errors to errors that are obvious, adjudicable from the record, and resulted in actual
prejudice, we strike the proper policy balance.
Here, after only two and one-half hours of deliberating, the jury asked whether the
Walla Walla County jail policies are legally binding, whether they are considered law,
and what if they could not reach a unanimous verdict on one count. The trial court, after
seeking input from the State and Dunleavy, responded in writing, “You are to review the
evidence, the exhibits, and the instructions, and continue to deliberate in order to reach a
verdict.” CP at 5. This response is not so obviously coercive as to constitute manifest
error. Because the unpreserved claim of error was not obvious, it is not reviewable under
RAP 2.5(a)(3).
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SUFFICIENCY OF THE EVIDENCE
Dunleavy next challenges the sufficiency of the evidence to sustain his conviction
for second degree burglary. He argues a jail cell is not a separate building and, even if it
is, he had an implied license to enter LaMunyon’s cell. We disagree with both arguments.
Standard of review
In a criminal case, the State must provide sufficient evidence to prove each
element of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). In evaluating the sufficiency of the
evidence, the court must determine whether, when viewing the evidence in the light most
favorable to the State, any rational trier of fact could have found guilt beyond a
reasonable doubt. State v. Pirtle, 127 Wash. 2d 628, 643, 904 P.2d 245 (1995). A claim of
insufficiency of the evidence admits the truth of the State’s evidence and all reasonable
inferences from that evidence. State v. Kintz, 169 Wash. 2d 537, 551, 238 P.3d 470 (2010).
Reviewing courts also must defer to the trier of fact “on issues of conflicting testimony,
credibility of witnesses, and the persuasiveness of the evidence.” State v. Thomas, 150
Wash. 2d 821, 874-75, 83 P.3d 970 (2004). This court does not reweigh the evidence and
substitute its judgment for that of the jury. State v. Green, 94 Wash. 2d 216, 221, 616 P.2d
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628 (1980). For sufficiency of evidence claims, circumstantial and direct evidence carry
equal weight. State v. Varga, 151 Wash. 2d 179, 201, 86 P.3d 139 (2004).
Rules of statutory interpretation
Dunleavy’s argument also requires interpretation of a definitional statute related to
burglary. Statutory interpretation is a question of law reviewed de novo. State v. Evans,
177 Wash. 2d 186, 191, 298 P.3d 724 (2013). “The purpose of statutory interpretation is ‘to
determine and give effect to the intent of the legislature.’” Id. at 192 (quoting State v.
Sweany, 174 Wash. 2d 909, 914, 281 P.3d 305 (2012)). “When possible, we derive
legislative intent solely from the plain language enacted by the legislature, considering the
text of the provision in question, the context of the statute in which the provision is found,
related provisions, and the statutory scheme as a whole.” Id. “Plain language that is not
ambiguous does not require construction.” Id. “If more than one interpretation of the
plain language is reasonable, the statute is ambiguous and we must then engage in
statutory construction.” Id. at 192-93. “We may then look to legislative history for
assistance in discerning legislative intent.” Id. at 193. “If a penal statute is ambiguous
and thus subject to statutory construction, it will be ‘strictly construed’ in favor of the
defendant.” Id. (quoting State v. Hornaday, 105 Wash. 2d 120, 127, 713 P.2d 71 (1986)).
“This means that we will interpret an ambiguous penal statute adversely to the defendant
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only if statutory construction ‘clearly establishes’ that the legislature intended such an
interpretation.” Evans, 177 Wash. 2d at 193 (quoting City of Seattle v. Winebrenner, 167
Wash. 2d 451, 462, 219 P.3d 686 (2009)).
1. Jail cells are separate buildings for purposes of proving burglary
“A person is guilty of burglary 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
building other than a vehicle or a dwelling.” RCW 9A.52.030(1). RCW 9A.04.110(5)
defines “building” in relevant part as
any . . . structure used for lodging of persons . . . ; each unit of a building
consisting of two or more units separately secured or occupied is a separate
building.
(Emphasis added.)
Dunleavy does not dispute that a jail is a building used for lodging of persons,
specifically inmates. The evidence at trial established that each cell is secured at night
and an inmate can secure his cell from others. The evidence at trial further established
that each cell is separately occupied by two inmates. We discern no ambiguity. A jail
cell is a separate building for purposes of proving burglary.
Dunleavy cites State v. Thomson, 71 Wash. App. 634, 861 P.2d 492 (1993) in
support of his argument that a jail cell is not a “unit of a building . . . separately secured
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or occupied.” In Thomson, the victim rented a house and invited the defendant to stay in
a guest bedroom. Id. at 636. Sometime during the night, the guest broke into the victim’s
bedroom and raped her. Id. The Thomson court considered whether the defendant
satisfied the first degree rape statute by feloniously entering a building. Id. at 637. There,
the State argued that the phrase “‘a building consisting of two or more units separately
secured or occupied’” meant “any building in which at least one room happens to be
separately locked or occupied at the time of a crime.” Id. at 642. In contrast, the
defendant argued that the phrase meant “a building occupied or intended to be occupied
by different tenants separately, for example, a hotel, apartment house, or rooming house.”
Id. The Thomson court, without employing a plain meaning analysis, concluded that the
phrase was ambiguous and examined the history of the statute.1 Id. at 643-44.
1
Thomson quotes the drafter’s commentary that states, “‘multi-unit buildings is
consistent with a similar provision in the definition of “dwelling house” . . . see also,
State v. Rio, 38 Wash. 2d 446, 450, 230 P.2d 308, cert. denied, 342[ ] U.S. 867 [230 P.2d
308] (1951).” Thomson, 71 Wash. App. at 644 (some emphasis omitted).
In Rio, the Washington Supreme Court upheld a burglary conviction where the
defendant, a worker who resided in his employer’s house, entered the bedroom of his
employer and committed a felony against his employer’s wife. 38 Wash. 2d at 450-51.
Thomson, contrary to Rio, holds that a burglary does not occur when a houseguest breaks
into his host’s bedroom and commits a felony against his host. Thomson, 71 Wash. App. at
646. But because we need not explicitly overrule Thomson to decide this case, the
observations noted above are dicta.
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We disagree that the italicized phrase is ambiguous. The plain meaning of the
phrase lends itself to only one interpretation. The phrase unambiguously means any
multi-unit building in which the units are separately secured or occupied. There is no
requirement, as suggested by the State in Thomson, that the unit be secured or occupied at
the time of the crime. Nor, as suggested by the defendant in Thomson, is there any word
in the phrase that limits its meaning to multi-unit buildings with tenants. If the legislature
intended such meanings it could have said so. It did not. Because the phrase is
unambiguous, resort to legislative history would be error. Evans, 177 Wash. 2d at 192-93.
We conclude that a jail is a building that consists of two or more units separately
secured or occupied. Accordingly, by application of RCW 9A.04.110(5), each unit or cell
is a separate building.2
2. No implied license for unlawful entry
Dunleavy contends he did not commit burglary when he entered LaMunyon’s cell
because his entry was lawful from an implied license to enter the cell.
“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.” Former
2
Dunleavy notes that Thomson placed great emphasis on the privacy interests of
the occupants in its analysis. Because our analysis rests on the plain language of the
statutory definition, we view the privacy interests of the occupants as irrelevant.
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RCW 9A.52.010(5) (2011). Dunleavy argues the evidence established that inmates go in
and out of each other’s cells frequently and this custom or practice supported his
reasonable belief that he had an implied license to enter other inmates’ cells. See State v.
C.B., 195 Wash. App. 528, 538-39, 380 P.3d 626 (2016); Singleton v. Jackson, 85 Wn.
App. 835, 839, 935 P.2d 644 (1997).
His argument is contrary to the standard that limits our review of factual issues.
LaMunyon testified he did not give Dunleavy permission to enter his cell. Sergeant
Robertson testified that inmates are told when they are first booked into jail that they may
not enter another inmate’s jail cell. Inmates are subject to punishment for breaking these
rules, including criminal charges. Dunleavy did elicit testimony that inmates often go
into the cells of other inmates. But the standard that limits our review contemplates
conflicting evidence and requires us to resolve such conflicts in favor of the State. Pirtle,
127 Wash. 2d at 643. A rational jury could find beyond a reasonable doubt that Dunleavy
entered LaMunyon’s cell unlawfully.
OFFENDER SCORE CALCULATION
Dunleavy contends the State did not meet its burden in proving his prior
convictions to calculate his offender score at sentencing. The State argues in response
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that it did not need to provide evidence of his prior convictions because he waived this
challenge by affirmatively acknowledging his convictions. We agree with Dunleavy.
Sentencing errors resulting in unlawful sentences may be raised for the first time
on appeal. State v. Bahl, 164 Wash. 2d 739, 744, 193 P.3d 678 (2008). Offender score
calculations are reviewed de novo. State v. Moeurn, 170 Wash. 2d 169, 172, 240 P.3d 1158
(2010).
The State has the burden of establishing a defendant’s prior criminal history by a
preponderance of the evidence to determine his or her offender score at sentencing. State
v. Ford, 137 Wash. 2d 472, 479-80, 973 P.2d 452 (1999). An unsupported statement of
prior criminal history is insufficient to satisfy the State’s burden of proof. State v.
Hunley, 175 Wash. 2d 901, 910, 287 P.3d 584 (2012). The State is relieved of this burden if
the defendant affirmatively acknowledges his or her prior criminal history; the
defendant’s mere failure to object is insufficient. Id. at 912.
The State argues Dunleavy has waived this argument because he is not claiming
his offender score was incorrectly calculated but instead just that the State did not meet its
burden of proof. The State relies on In re Personal Restraint of Goodwin, 146 Wash. 2d
861, 50 P.3d 618 (2002). The Goodwin court discussed various ways defendants can
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waive a claimed error in offender score calculations, including acknowledging facts, even
erroneous facts, underlying an offender score calculation.
Dunleavy’s statements at sentencing do not constitute an acknowledgement of
facts. The State points to Dunleavy’s letter to the trial court. In that letter, Dunleavy
asked the trial court to impose a drug offender sentencing alternative, and mentioned “the
prosecutor’s recommendation” of three to five years. RP at 191. Dunleavy’s mention of
the prosecutor’s recommendation does not constitute an admission of facts.
The State also points to Dunleavy’s statement to the trial court during sentencing.
The trial court questioned Dunleavy about his ability to pay legal financial obligations. In
response, Dunleavy stated that he was paying legal financial obligations on “[a]t least six”
prior offenses. RP at 201. Although this statement is an admission of prior offenses, it is
not an admission of sufficient facts to establish an offender score of 9+.
The State complains that Dunleavy’s challenge to his offender score is a waste of
resources. This might be true. But the State can safeguard unnecessary challenges by
obtaining the defendant’s stipulation to an offender score, by obtaining a clear
acknowledgement by the defendant of his offender score, or by presenting proof of the
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defendant's prior convictions. We remand so that the State can pursue one of these three
options. 3
Affirmed in part; remanded for resentencing.
I A.(.
Lawrence-Berrey, A.CJ.
WE CONCUR:
G?-o
Pennell,J.
_Q_ ·@=
3 Dunleavy requests that we deny the State an award of appellate costs in the event
. the State substantially prevails. We deem the State the substantially prevailing party. If
the State seeks appellate costs, we defer the award of appellate costs to our commissioner
in accordance with RAP 14.2.
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