State Of Washington v. Lashawn Hooper ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, No. 70641-1-
Respondent,
v.
LASHAWN D. HOOPER, UNPUBLISHED OPINION
Appellant. FILED: September 29, 2014
Verellen, A.C.J. — In this prosecution for burglary, the trial court denied
LaShawn Hooper's requests for a lesser included offense instruction and credit for time
he spent in inpatient treatment prior to trial. Because Hooper fails to demonstrate any
error in these decisions, and because his challenge to the sufficiency of the instructions
lacks merit, we affirm.
FACTS
Based on allegations that Hooper burglarized a home and assaulted the owner,
the State charged him with first degree burglary.
Following a period of competency restoration at Western State Hospital, Hooper
requested release on personal recognizance for the purpose of getting "some sort of
treatment." Defense counsel told the court about "the IMPACT program which is
designed to provide housing for long term treatment."1 Counsel said that IMPACT
1 Report of Proceedings (RP) (Mar. 29, 2012) at 41.
No. 70641-1-1/2
provided inpatient treatment and classes. Over the State's objection, the court granted
"the request to PR [Hooper] on the condition that he participate in this program."2
At trial, Michael Schutz testified that he returned to his home one afternoon to
find his house in disarray and Hooper rifling through his closet. Schutz did not know
Hooper and had not given him permission to be in his home. Schutz grabbed Hooper
and attempted to call 911. Hooper struck and bit Schutz and stabbed him with a key.
Schutz let go of Hooper and reached for his phone. Hooper then grabbed Schutz and
slammed his knee into Schutz's head. Hooper eventually fled the house with a
backpack.
Schutz called 911 and police responded within minutes. Schutz was bleeding
from a bite mark under his left arm and an injury to his lip. He also had a large bite
mark on his forehead. Officers found a stool outside the house beneath an open
bathroom window. They also found fresh dirt inside the house underneath the same
window.
An officer located Hooper jumping a nearby fence. After chasing Hooper down,
the officer convinced him to surrender by threatening to taser him. Hooper was
sweating, out of breath, and bleeding from his head and hands. Schutz later identified
Hooper as the man he found in his house. Items from Schutz's house were found in the
backpack Hooper was carrying at the time of his arrest.
Hooper testified that he had not entered Schutz's house and merely trespassed
across his yard. He admitted fighting with Schutz and inflicting the injuries observed by
2 Id. at 42.
No. 70641-1-1/3
officers but claimed Schutz had grabbed him, accused him of breaking into the house,
and put him in a headlock.
The defense requested lesser-included offense instructions for fourth degree
assault and second degree criminal trespass. The court gave a fourth degree assault
instruction but refused to give a trespass instruction because it was not legally a lesser
included offense of first degree burglary. The jury found Hooper guilty of first degree
burglary.
At sentencing, defense counsel and the prosecutor agreed that Hooper was
ineligible for credit for time he spent prior to trial in the inpatient treatment program.
Defense counsel, however, requested that the court credit the time as part of an
exceptional sentence below the standard range. The trial court declined to impose an
exceptional sentence, granted credit for time served, and stated, "I don't have authority
under the statute to give you credit for anything else."3
Hooper appeals.
DECISION
Hooper first contends the court erred in refusing "to instruct the jury on the lesser
included offense of criminal trespass in the second degree."4 The court did not err.
A defendant is entitled to a lesser-included offense instruction if (1) each element
of the lesser offense is a necessary element of the crime charged, and (2) the evidence
in the case supports an inference that only the lesser offense was committed.5 We
3RP(July 10, 2013) at 159.
4 Appellant's Br. at 5.
5 State v. Fernandez-Medina, 141 Wash. 2d 448, 454-55, 6 P.3d 1150 (2000)
(quoting State v. Workman, 90 Wash. 2d 443, 447-48, 584 P.2d 382 (1978)).
No. 70641-1-1/4
review a trial court's conclusion regarding the first factor—known as the "legal prong"—
de novo.6 We review a decision on the second factor, or factual prong, for abuse of
discretion.7 Only the legal prong is at issue here.
The legal prong is not satisfied if it is possible to commit the greater offense
without having committed the lesser offense.8 A person commits first degree burglary
"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."9 A person commits second degree
criminal trespass when "he or she knowingly enters or remains unlawfully in or upon
premises of another under circumstances not constituting criminal trespass in the first
degree."10 Criminal trespass in the first degree occurs when a person "knowingly enters
or remains unlawfully in a building."11
First degree burglary can be committed without committing second degree
criminal trespass. A person who knowingly enters or remains unlawfully in a building
while armed with a deadly weapon commits first degree burglary and first degree
criminal trespass, but does not commit second degree criminal trespass because the
6 State v. LaPlant, 157 Wash. App. 685, 687, 239 P.3d 366 (2010).
7jd,
8 State v. Turner, 143 Wash. 2d 715, 729, 23 P.3d 499 (2001) (quoting State v.
Roybal, 82 Wash. 2d 577, 583, 512 P.2d 718 (1973)).
9 RCW 9A.52.020.
10 RCW 9A.52.080.
11 RCW 9A.52.070.
No. 70641-1-1/5
latter can be committed only under circumstances not amounting to first degree criminal
trespass.12 In reaching that conclusion, the Mounsev court stated:
Since buildings and dwellings are equivalent under
RCW 9A.04.110, first degree criminal trespass is a lesser included offense
of first degree burglary. But second degree criminal trespass is not, since
second degree criminal trespass involves knowingly entering or remaining
on premises in a situation which does not amount to first degree criminal
trespass. Second degree criminal trespass then can apply only in
situations where a person enters or remains unlawfully on premises other
than a building, i.e., open grounds, yards, etc. If a person knowingly
enters or remains unlawfully in a building, he is guilty of first degree
criminal trespass, which by definition cannot be second degree criminal
trespass. Therefore, .. . Mounsey was not entitled to an instruction on
second degree criminal trespass.[13]
Hooper does not argue that Mounsev was wrongly decided. And while he
correctly points out that Mounsev involved different facts, Mounsev's holding, quoted
above, applies equally to this case. Under Mounsev, Hooper's argument fails the legal
prong of the lesser-included test. The court did not err in refusing to give the requested
instruction.
Hooper next contends the court's instruction defining "premises" created
confusion regarding the difference between a building and premises. The court
instructed the jury that first degree burglary occurs when a person unlawfully enters or
remains in "a building."14 Similarly, the to-convict instruction required the jury to find that
Hooper "entered or remained unlawfully in a building."^5 Other instructions stated that
unlawful entry or remaining "upon premises" occurs ifthe person is not licensed, invited
12 State v. Mounsev, 31 Wash. App. 511, 517-18, 643 P.2d 892 (1982).
13 Id. at 518 (emphasis added).
14 Clerk's Papers at 57.
15 jd. at 62 (emphasis added).
No. 70641-1-1/6
or privileged to enter or remain, and that "premises includes any building, dwelling, or
any real property."16 Hooper contends these instructions allowed the jury to conclude
"that legally speaking, premises and building, dwelling or property were essentially the
same."17 We disagree.
"'Jury instructions are sufficient when they allow counsel to argue their theory of
the case, are not misleading, and when read as a whole properly inform the trier of fact
of the applicable law.'"18 The instructions in this case unambiguously required the jury
to find that Hooper unlawfully entered or remained in a building. While they also stated
that a "building" is a form of "premises," nothing in the instructions suggested that mere
property or premises could be a "building." The instructions did not confuse these terms
and accurately informed the jury of the applicable law.
Last, Hooper contends the sentencing court erred in denying him credit for
presentence time he spent in inpatient treatment in the IMPACT program. Whether to
award credit for time served is a question of law subject to de novo review.19 The court
did not err in denying the requested credit.
Under RCW 9.94A.505(6), a trial court is required to grant credit for all
confinement time served prior to sentencing. "Confinement" is defined as "total or
partial confinement."20 "Total confinement" means "confinement inside the physical
boundaries of a facility or institution operated or utilized under contract by the state or
16 jd, at 59-60.
17 Appellant's Br. at 14.
18 State v. Knutz, 161 Wash. App. 395, 403, 253 P.3d 437 (2011) (quoting State v.
Aquirre, 168 Wash. 2d 350, 363-64, 229 P.3d 669 (2010)).
19 State v. Swiqer, 159 Wash. 2d 224, 227, 149 P.3d 372 (2006).
20 RCW 9.94A.030(8).
No. 70641-1-1/7
any other unit of government for twenty-four hours a day."21 "Partial confinement" is
defined as
confinement for no more than one year in a facility or institution operated
or utilized under contract by the state or any other unit of government, or,
if home detention or work crew has been ordered by the court or home
detention has been ordered by the department as part of the parenting
program, in an approved residence, for a substantial portion of each day
with the balance of the day spent in the community. Partial confinement
includes work release, home detention, work crew, and a combination of
work crew and home detention.[22]
The State points out, and Hooper does not dispute, that nothing in the record
shows that the IMPACT program is "a facility or institution operated or utilized under
contract by the state or any other unit of government." Nor does Hooper contend that
IMPACT is a form of home detention or work crew. Instead, Hooper contends that
IMPACT "is akin" to the forms of partial confinement mentioned in the last sentence of
the statute. That sentence, however, merely reiterates the approved forms of
residential partial confinement previously mentioned in the statute. Hooper presents no
compelling authority, argument, or statutory interpretation supporting his claim that the
statute authorizes credit for other programs such as inpatient treatment. Nor does he
address contrary authority cited by the State.23 Instead, he relies on State v. Medina.24
Medina, however, is distinguishable.
21 RCW9.94A.030(51).
22 RCW 9.94A.030(35) (emphasis added).
23 See State v. Hale, 94 Wash. App. 46, 55, 971 P.2d 88 (1999) (after reviewing the
statutory definition of partial confinement, appellate court reversed credit for inpatient
treatment, stating that "the SRA does not grant trial courts authority to credit drug
treatment against confinement time or community service").
24 180 Wash. 2d 282, 324 P.3d 682 (2014).
No. 70641-1-1/8
In Medina, the defendant sought credit for time he spent in the King County
Community Center for Alternative Programs (CCAP) prior to his second trial. In
concluding that CCAP did not constitute partial confinement, the Medina court noted that
the statute defining partial confinement equates "confinement" with "residence", and that
"the CCAP facility is not a residence."25 Seizing on this portion of Medina, Hooper argues
that he is entitled to credit for his time in IMPACT because his treatment was residential.
But as discussed above, Hooper fails to demonstrate that credit is statutorily authorized
for this type of residential program. By contrast, the CCAP program at issue in Medina,
although not residential, did otherwise qualify for credit under RCW 9.94A.030(35)
because the record established that CCAP was "a facility or institution operated or
utilized under contract by the state or any other unit of government."26
Hooper's cursory claims that denying him credit violates equal protection, double
jeopardy, and due process are too conclusory to merit discussion.27
Affirmed.
WE CONCUR:
fcx, '0
25 Medina, 180 Wash. 2d at 289.
26 See id, at 284-87 .
27 State v. Elliott. 114 Wash. 2d 6, 15, 785 P.2d 440 (1990) (appellate court need
not consider claims that are insufficiently argued).
8