State Of Washington v. Robert Wayne Mickens ( 2014 )

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COURT OF APPEALS
DIVISION II.
20I U 9 AM 9: 38
IN THE COURT OF APPEALS OF THE STATE OF WASHiiil
G1
BY_
DIVISION II
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STATE OF WASHINGTON, Consol. Nos. 45243 -0 -I1 C
45246 - -I1
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Respondent,
v.
ROBERT WAYNE MICKENS, UNPUBLISHED OPINION
Appellant.
MAXA, J. — Robert Mickens appeals his conviction for residential burglary
based on his removal of a mirror from a common storage area for residential apartments.
He argues that the State failed to present sufficient evidence of residential burglary
because the storage area was not a " dwelling." We disagree, and affirm.
FACTS
On February 5, 2013, in the early morning, Mickens entered a building that had
an auto repair shop and one residential apartment on the ground level and nine residential
apartments and a storage area on the second level. The main entrance to the second level
was unlocked, and Mickens walked up to that level. He then entered the storage area,
which was connected to the apartments by an open hallway. The door to the storage area
was unlocked, but a sign on the door stated, " no trespassing tenants only." Verbatim
Report of Proceedings ( VRP) ( June 4, 2013) at 77. Once inside the storage area, Mickens
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pried a large mirror off the wall. He then left the building with the mirror and gave it to
an acquaintance.
The State charged Mickens with residential burglary and third degree theft. At
trial, the building owner described the storage area, where tenants store belongings either
unsecured in the open area or in a secured area behind a locked gate. The storage area
and apartment hallway are under video surveillance, which is reviewed daily by
apartment staff. During trial, the State played the surveillance video showing Mickens
prying the mirror, located in the common storage area, off of the wall.
A jury found Mickens guilty of residential burglary. 1 Mickens appeals.
ANALYSIS
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). " Dwelling" includes any " building
or structure..., or a portion thereof, which is used or ordinarily used by a person for
lodging." RCW 9A. 04. 110( 7). Mickens argues that the evidence at trial was insufficient
to convict him of residential burglary because the storage area where the mirror was
located did not constitute a " dwelling." We disagree.
The test for determining sufficiency of the evidence is whether, after 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. Rose, 175 Wn.2d 10, 14, 282 P. 3d 10872012). In a sufficiency of the evidence claim, the defendant admits the truth of the
State's evidence and all reasonable inferences drawn from that evidence. Rose, 175
1 The trial court dismissed the third degree theft charge.
2
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Wn.2d at 14. Credibility determinations are made by the trier of fact and not subject to
review. State v. Miller, 179 Wn. App. 91, 105, 316 P. 3d 1143 ( 2014). Circumstantial
and direct evidence are equally reliable. Miller, 179 Wn. App. at 105.
Under RCW 9A. 04. 110( 7), entry into a portion of a residential area of a building
supports a conviction for residential burglary even if no resident lives in that portion of
the residential area. See State v. Neal, 161 Wn. App. 111, 113 -14, 249 P.3d 211 ( 2011)
a tool room in an apartment building was a " dwelling" because it was a portion of a
building used as lodging); State v. Murbach, 68 Wn. App. 509, 513, 843 P. 2d 551 ( 1993)
an attached garage with a door leading to a residence was a " dwelling" because it was a
portion of a building used as lodging); see also State v. Moran, Wn. App. , 324
P. 3d 808, 812 ( 2014) ( the area under the foundation of a house was a " dwelling" even
though the area was not accessible from the inside living quarters).
Here, the second floor of the multiplex building is used as lodging —residential
apartments. The storage area where the mirror hung is a portion of the lodging area
because it is on the same floor as the apartments and was connected to them by an open
hallway. Further, the purpose and function of the storage area on the second floor is
similar to a tool room, attached garage, or area under a house' s foundation, all of which
are portions of a building used for lodging under Washington law. Moran, 324 P. 3d at
812; Neal, 161 Wn. App. at 113 - 14; Murbach, 68 Wn. App. at 513. Accordingly, the
storage area is a " dwelling."
Mickens argues that the storage area is open to the public and therefore is not part
of a building used for lodging. The main entrance to the second floor is unlocked, and
allows public access to the apartments and to the hallway leading to the storage area.
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And the door to the storage area is unlocked. However, a sign posted on the storage area
door states, " no trespassing tenants only." VRP ( June 4, 2013) at 77. Because of this
sign, leaving the door unlocked did not convert an otherwise private area into a public
area or provide an open invitation to the public.
By entering the attached storage area reserved exclusively for tenants, Mickens
unlawfully entered a portion of a building used for lodging. As a result, there was
sufficient evidence to convict Mickens of residential burglary. We affirm.
A majority of the panel having determined that this opinion will not be printed in
the Washington Appellate Reports, but will be filed for public record in accordance with
RCW 2. 06. 040, it is so ordered.
We concur:
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