State Of Washington v. Erik Thomas Schumann ( 2013 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 68853-7-1
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
ERIK THOMAS SCHUMANN,
Appellant. FILED: October 7, 2013
Appelwick, J. — This appeal arises rom Schumann's conviction for residential
burglary. His defense at trial was that he easonably though mistakenly believed the
house was abandoned. His attorney did not request jury instructions on the
abandonment defense. Schumann argues this constituted ineffective assistance of
counsel. We affirm.
FACTS
On the morning of February 3, 2012, Michael Brunson heard a loud noise and
discovered someone had broken a window in an exterior door to the basement of his
Shoreline home. Brunson reported the break-in. However, he had to leave on an
urgent errand before he could board up the window, so he locked the basement door
and moved an empty file cabinet in front of it.
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Later that evening, police responded to a call from Brunson that he heard a voice
coming from his basement. The two responding officers found Erik Schumann and a
female suspect inside the basement. Brunson did not know either individual. One
officer noticed that Schumann was wearing gloves and had a set of pliers in the utility
pocket of his pants. Upon arrest, the officers searched Schumann and found he had
several knives, a pry bar, flashlight, pliers, and a handsaw. One of the knives was later
confirmed to be stolen from the basement. The State charged Schumann with one
count of residential burglary.
From jail, Schumann called a friend to say, "But hey urn yeah I got popped for
that fuckin' Meridian house." The friend asked, "It was empty right?" and then asked "Is
there people living there?" Schumann responded, "Yeah. There's people livin' there.
Tell Diaper Socks not to hit it up. That's crazy."
At trial, Schumann relied on the defense that he reasonably believed the house
was abandoned. Brunson's property was so overgrown that his house could not be
seen from the street. The home looked cluttered and in disrepair. Brunson
acknowledged that his property is more densely wooded than neighboring properties,
and he usually only turned on one light at a time in the house. However, Schumann's
defense counsel did not request any jury instructions on the abandonment defense.
The jury returned a verdict of guilty. Schumann appeals.
DISCUSSION
Schumann argues that he was entitled to jury instructions on his defense that he
reasonably believed the house was abandoned. He contends that by relying on this
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defense without proposing instructions to inform the jury of supporting law, his counsel
performed deficiently and prejudice resulted.
To establish ineffective assistance based on counsel's failure to request a jury
instruction, the defendant must show that he was entitled to the instruction, counsel was
deficient in failing to request it, and failure to request the instruction caused prejudice.
Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);
State v. Johnston. 143 Wn. App. 1, 21, 177 P.3d 1127 (2007). Where counsel has no
strategic reason for failing to request jury instructions on a defense theory and prejudice
results, Washington courts have held counsel to be ineffective. See, e.g.. State v.
Powell. 150 Wn. App. 139, 155, 206 P.3d 703 (2009); State v. Kruger. 116 Wn. App.
685, 693-94, 67 P.3d 1147 (2003).
A person is guilty of residential burglary if, "with intent to commit a crime against
a person or property therein, the person enters or remains unlawfully in a dwelling other
than a vehicle." RCW 9A.52.025(1). A person is guilty of first degree criminal trespass
"if he or she knowingly enters or remains unlawfully in a building." RCW 9A.52.070(1).
There is no statutory defense to residential burglary. See chapter 9A.52 RCW.
However, RCW 9A.52.090 provides several defenses to criminal trespass:
In any prosecution under RCW 9A.52.070 and 9A.52.080, it is a defense
that:
(1) A building involved in an offense under RCW9A.52.070 was
abandoned: or
(2) The premises were at the time open to members of the public
and the actor complied with all lawful conditions imposed on access to or
remaining in the premises; or
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(3) The actor 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.
(Emphasis added.)
This case turns on whether Schumann was entitled to a jury instruction on
abandonment as a defense to residential burglary. See State v. Cienfuegos. 144 Wn.2d
222, 227, 25 P.3d 1011 (2001). Division Two and Division Three of this court currently
disagree as to whether abandonment is a defense to burglary. See, e.g.. State v.
Jensen. 149 Wn. App. 393, 401, 203 P.3d 393 (2009); State v. J .P., 130 Wn. App. 887,
895, 125 P.3d 215 (2005).
In J.P., the defendant was convicted of residential burglary after he was caught
spray painting walls and windows inside a vacant, repossessed home being prepared
for sale. 130 Wn. App. at 890-91. On appeal, Division Three considered whether the
criminal trespass abandonment defense also applies to residential burglary. jp\ at 894.
The court acknowledged that RCW 9A.52.090(1) is limited to criminal trespass by its
terms. kL at 894. However, the Washington Supreme Court held in City of Bremerton
v. Widell that the statutory defenses to criminal trespass negate the unlawful presence
element.1 146 Wn.2d 561, 570, 51 P.3d 733 (2002). Burglary and criminal trespass
share the same unlawful entry or presence element. J.P.. 130 Wn. App. at 895.
Therefore, Division Three concluded, the unlawful presence element of residential
burglary must be equally negated by abandonment. |a\
1 Once a defendant has offered some evidence that his or her entry was
permissible under RCW 9A.52.090, due process requires that the State bear the burden
of proving beyond a reasonable doubt that the defendant's entry was unlawful. Widell,
146 Wn.2d at 570; State v. Deer. 175 Wn.2d 725, 734, 287 P.3d 539 (2012), cert-
denied, 133 s. Ct. 991, 184 L Ed. 2d 770 (2013).
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Division Two disagreed. In Jensen, the defendant was convicted of second
degree burglary for entering a restaurant that appeared abandoned, but was not. 149
Wn. App. at 397. Division Two recognized that "J.P.'s holding has a measure of logical
appeal, because burglary and criminal trespass share the same unlawful entry
element." Id at 400. However, the court concluded, the plain language of the statutory
abandonment defense applies only to prosecutions for first degree criminal trespass.
Id. at 400-01. Therefore, the court held that the abandonment defense of RCW
9A.52.090(1) is not available for second degree burglary. Id at 401.
However, we need not decide here whether abandonment is a negating defense
to residential burglary, because Schumann was not entitled to a jury instruction on
abandonment. Though a criminal defendant is entitled to have the jury fully instructed
on the defense theory of the case, he is not entitled to an instruction that inaccurately
represents the law or for which there is no evidentiary support. State v. Stalev, 123
Wn.2d 794, 803, 872 P.2d 502 (1994). In determining whether sufficient evidence
supports an instruction, we view the evidence in the light most favorable to the
requesting party. State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150(2000). Schumann argues that a subjective, reasonable belief that the home was
abandoned is sufficient to trigger a jury instruction on the defense. We disagree.
In considering Schumann's argument, we look to the broader statutory context of
the abandonment defense. Lake v. Woodcreek Homeowners Ass'n, 169 Wn.2d 516,
526, 243 P.3d 1283 (2010). RCW 9A.52.090(3) provides a defense to criminal trespass
when the defendant "reasonably believed" that the owner would have licensed him or
her to enter the premises. In contrast, RCW 9A.52.090(1) makes no mention of the
No. 68853-7-1/6
defendant's reasonable belief that the premises were abandoned. Rather, it is only a
defense that the building "was abandoned." RCW 9A.52.090(1). Inclusion of a
reasonable belief defense in RCW 9A.52.090(3) implies exclusion of it in RCW
9A.52.090(1). State v. Ortega. 177 Wn.2d 116, 124, 297 P.3d 57 (2013). The statute
requires abandonment in fact—reasonable belief of abandonment is not sufficient to
trigger RCW 9A.52.090(1).2 In practical terms, this makes sense, because it
discourages individuals from entering buildings that are not in fact abandoned, even
though they appear to be.
J.P. supports this conclusion, as well. In J.P.. the home was vacant after being
repossessed by a bank. 130 Wn. App. at 893, 896. Because the bank did not intend to
surrender the property, the home was not abandoned.3 Id Therefore, the dR court
held that the unlawful entry element of residential burglary was not negated by
abandonment, and affirmed J.P.'s conviction, Id If a home is not actually abandoned,
then entry cannot be lawful under that defense theory.
Likewise, in State v. Ponce, the court held that jury instructions almost identical
to the ones given in Schumann's case were sufficient to apprise the jury of the law and
2 Cf. Powell, 150 Wn. App. at 153, 157-58 (finding ineffective assistance of
counsel where attorney failed to request a jury instruction on a statutory reasonable
belief defense to second degree rape).
3 "Abandoned" is not defined by the statute. See RCW 9A.52.010, .090. JP.
relied on the dictionary definition of the word "abandon": "'to cease to assert or exercise
an interest, right, or title to especially] with the intent of never again resuming or
reasserting it' and 'to give up ... by leaving, withdrawing, ceasing to inhabit, to keep, or
to operate often because unable to withstand threatening dangers or encroachments.'"
130 Wn. App. at 895-96 (alterations in original) (quoting Webster's Third New
International Dictionary 2 (1993)).
No. 68853-7-1/7
enable Ponce to argue his theory of permissible entry.4 166 Wn. App. 409, 420, 269
P.3d 408 (2012). A specific instruction need not be given when a more general
instruction adequately explains the law and enables the parties to argue their theories of
the case. Id at 419.
Schumann nevertheless argues that reasonable belief of abandonment negates
the mens rea required for burglary. However, the statutory abandonment defense
negates the unlawful presence element. Widell. 146 Wn.2d at 570. The definition of
unlawful presence does not include a requisite mens rea: "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." 9A.52.010(5). Rather, the mens rea for
burglary is the "intent to commit a crime against a person or property," not the fact of
unlawful entry. RCW 9A.52.020(1). Reasonable belief of abandonment may go to the
defendant's intent to commit a crime. For instance, the defendant might have believed
the property he took from the premises was abandoned, therefore it belonged to no one.
However, if the premises are not in fact abandoned, then the defendant is not entitled to
a jury instruction on abandonment under RCW 9A.52.090(1), because entry is unlawful.
Even viewing evidence in the light most favorable to Schumann, testimony
conclusively established that the home here was not abandoned. Brunson lived there
4 In Ponce. Division Three clarified that J.P. did not hold that a jury must be
instructed that the statutory defenses to criminal trespass are also defenses to
residential burglary. 166 Wn. App. at 417. Rather, the JP. "court did no more than
recognize that if proof of abandonment of property would negate the unlawful entry
element of criminal trespass for due process/burden of proof purposes, as determined
in Widell, then it must negate the identical unlawful entry element for residential
burglary." Jd at 418. The Ponce court explained that the defenses to criminal trespass
have "no bearing at all on a court's decision to instruct on them in a burglary case." Id
No. 68853-7-1/8
for almost all his life. In fact, he had not spent one night away from home since 2009.
Therefore, Schumann's unlawful entry was not negated by RCW 9A.52.090(1). Under
these facts, Schumann was not entitled to a jury instruction on abandonment. Because
Schumann was not entitled to the jury instruction, his counsel was not ineffective.
We affirm.
WE CONCUR:
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