State Of Washington, Resp. v. Glenn T. Smith, App. ( 2013 )

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CUURT OF APPEALS DiV I
STATE OF WASHINGTON
2013HAR-U AH 10: 28
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 67709-8-1
Respondent, DIVISION ONE
v.
GLENN TYLER SMITH, UNPUBLISHED
Appellant. FILED: March 4, 2013
Cox, J. — Glenn Smith appeals his conviction for second degree burglary.
He claims the trial court erroneously refused to provide a lesser included
instruction of third degree theft. He also argues that there was insufficient
evidence to convict him of second degree burglary. We disagree with both
claims and affirm.
In 2007, Smith was caught shoplifting from a Wal-Mart store in Everett. A
Wal-Mart employee testified that she verbally told Smith that he was "trespassed"
or restricted from entering any Wal-Mart for his lifetime afterthis incident.
In 2011, Smith was again caught shoplifting from the same Wal-Mart. The
State charged Smith with one count ofsecond degree burglary.
At Smith's jury trial, he requested that third degree theft be included as a
lesser included offense instruction. The trial court denied Smith's request on the
basis that third degree theft is not a lesser included offense of second degree
burglary.
No. 67709-8-1/2
The jury found Smith guilty of second degree burglary.
Smith appeals.
LESSER INCLUDED OFFENSE INSTRUCTION
Smith argues that his conviction for second degree burglary must be
reversed because he was entitled to a lesser instruction for third degree theft that
the trial court declined to give. We disagree.
In Washington, the right to a lesser included offense instruction is
statutory.1 A defendant is entitled to an instruction of a lesser included offense if
the two prongs ofthe State v. Workman2 test are met. Under the legal prong,
each element of the lesser offense must be a necessary element of the charged
offense.3 Under the factual prong, the evidence presented in the case must
support an inference that the lesser crime was committed.4 "'Put another way, if
it is possible to commit the greater offense without having committed the lesser
offense, the latter is not an included crime.'"5
1RCW 10.61.006 ("In all other cases the defendant may be found guilty of
an offense the commission of which is necessarily included within that with which
he or she is charged in the indictment or information.").
290 Wn.2d 443, 447-48, 584 P.2d 382 (1978).
3State v. Berlin. 133 Wn.2d 541, 545-46, 947 P.2d 700 (1997) (citing
Workman, 90 Wn.2d at 447-48).
4JcL
5]dat546n.1 (quoting State v. Frazier. 99 Wn.2d 180, 191,661 P.2d 126(1983)).
No. 67709-8-1/3
Because the trial court rejected Smith's proposed instruction on the basis
that third degree theft is not a lesser included offense of second degree burglary,
we review the claimed legal error de novo.6
The elements of second degree burglary are (1) entering or remaining
unlawfully in a building other than a vehicle or dwelling, and (2) so doing with
intent to commit a crime against a person or property therein.7 The elements of
third degree theft are (1) the commission of a theft of (2) property or services not
exceeding $750 in value.8
Here, the State charged Smith with second degree burglary. Because
none of the elements of third degree theft are necessary elements of second
degree burglary, the trial court properly denied Smith's request for a lesser
included instruction.
Smith argues that he was entitled to the third degree theft instruction
because the second degree burglary charge was premised upon Smith's intent to
commit a "theft." Though the information9 and the to-convict instruction,10
0 State v. Walker. 136 Wn.2d 767, 772, 966 P.2d 883 (1998).
7RCW 9A.52.030(1); see State v. Brunson, 128Wn.2d 98, 104-05, 905
P.2d 346 (1995).
8RCW 9A.56.050(1); see also RCW 9A.56.020(1) (defining theft).
9See Clerk's Papers at 69 (emphasis added) (stating in the information
that "the defendant, on or about the 31st day of May, 2011, with intent to commit
a crime of theft against a person or property therein").
10 See Clerk's Papers at 34 (emphasis added) (stating in the to-convict
instruction "that the entering or remaining was with intent to commit a crime of
theft against a person or property therein").
No. 67709-8-1/4
specified that the crime Smith intended to commit was "theft," this argument is
not persuasive for two reasons.
First, Smith cites State v. Berlin11 to support his argument that the legal
prong of the Workman test turns on how an offense is charged and prosecuted,
not as it broadly appears in a statute. While this is a correct statement of law,
Berlin addressed a different issue than the issue in this case.
In Berlin, the supreme court overruled State v. Lucky, which held that
under the legal prong of the Workman test, a reviewing court must look at "'the
elements of the pertinent charged offenses as they appeared in the context of the
broad statutory perspective, and not in the more narrow perspective of the
offenses as prosecuted.'"12 In Lucky, the State charged Lucky with second
degree assault committed with a deadly weapon under RCW 9A.36.021(1).
Lucky requested a jury instruction for the offense of unlawful display of a weapon
under RCW 9.41.270(1 ).13 The State argued, and the supreme court agreed,
that unlawful display of a weapon was not a lesser included offense "because it is
possible to commit second degree assault, under RCW 9A.36.021, without
displaying a deadly weapon."14
11 133 Wn.2d 541. 947 P.2d 700 (1997). overruling State v. Lucky, 128
Wn.2d 727, 912 P.2d 483 (1996).
12133 Wn.2d at 547 (quoting Lucky, 128 Wn.2d at 734).
13 kL
14 Id.No. 67709-8-1/5
But in Berlin the supreme court overruled Lucky partly because it would
"preclude[ ] a lesser included offense instruction whenever a crime may be
statutorily committed by alternative means."15 "A lesser offense will seldom
satisfy every statutory alternative means of committing the greater offense."16
Instead, the court held:
A lesser included offense instruction is available to both the
prosecution and the defense, the constitutional requirement of
notice is incorporated into the Workman test, and the test allows
both parties to effectively argue their theory of the case. Only when
the lesser included offense analysis is applied to the offenses as
charged and prosecuted, rather than to the offenses as they
broadly appear in statute, can both the requirements of
constitutional notice and the ability to argue a theory of the case be
met. This is fair to both the prosecution and the defense.1171
Here, the State charged and prosecuted Smith with second degree
burglary under RCW 9A.52.030. As discussed above, this crime has two
elements: (1) entering or remaining unlawfully in a building other than a vehicle
or dwelling, and (2) so doing with intent to commit a crime against a person or
property therein.18 RCW 9A.52.030 does not provide alternative means of
committing this offense. Thus, the Berlin court's concerns that it had with the rule
in Lucky are not present in this case, and the holding in Berlin does not extend to
this case.
15 Id at 548.
16 Id,
17 Id. (emphasis added).
18 RCW 9A.52.030(1); see Brunson, 128 Wn.2d at 104-05.
No. 67709-8-1/6
Second, the supreme court has held that "[t]he intent to commit a specific
named crime inside the burglarized premises is not an 'element' of the crime of
burglary in the State of Washington."19 In State v. Bergeron, our supreme court
rejected a burglary defendant's argument that the information in his case was
defective because it did not specify the crime he intended to commit inside the
premises.20 Based on the history and text of the burglary statute, the court held
that "the specific crime or crimes intended to be committed inside burglarized
premises is not an element of burglary that must be included in the information,
jury instructions or in the trial court's findings and conclusions."21
Although Bergeron addressed whether an information was defective, the
holding is still helpful here. Since the specific crime that a person intended to
commit is not an element of second degree burglary, it follows that actually
naming a specific crime does not change the elements of second degree
burglary.
The fact that the State specified the crime Smith intended to commit was
"theft" in the information and to-convict instruction does not change the elements
of second degree burglary. Nor does it incorporate the elements of third degree
theft. As the State argues, it only had to prove that Smith "intended" to commit a
crime, here theft, not that a theft was actually "completed."
19 State v. Bergeron. 105 Wn.2d 1,4,711 P.2d 1000 (1985).
2014 at 6.
21
Id. at 16.
No. 67709-8-1/7
Because we conclude that the legal prong of the Workman test was not
satisfied, we need not reach Smith's arguments regarding the factual prong. The
trial court's refusal to give the third degree theft instruction does not require
reversal of Smith's conviction.
SUFFICIENCY OF THE EVIDENCE
Smith next argues that the State failed to present sufficient evidence that
he unlawfully entered or remained in the Wal-Mart store. Specifically, he
contends that the State failed to present sufficient evidence to show that Wal-
Mart previously notified him that his entry into their stores was unlawful. We
disagree.
Evidence is sufficient to support a conviction if, viewed in the light most
favorable to the State, any rational trier of fact could have found that each
element of the crime was proved beyond a reasonable doubt.22 We draw all
reasonable inferences from the evidence in the State's favor and interpret the
evidence most strongly against the defendant.23 We assume "the truth of the
State's evidence and all inferences that reasonably can be drawn therefrom."24
We defer to "the trier of fact on issues of conflicting testimony, credibility of
witnesses, and the persuasiveness of the evidence."25
22
State v. Drum, 168 Wn.2d 23, 34-35, 225 P.3d 237 (2010).
23 State v. Joy. 121 Wn.2d 333, 339, 851 P.2d 654 (1993).
24 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
25 State v. Fiser, 99 Wn. App. 714, 719, 995 P.2d 107 (2000).
No. 67709-8-1/8
As discussed above, the elements of second degree burglary are (1)
entering or remaining unlawfully in a building other than a vehicle or dwelling,
and (2) so doing with intent to commit a crime against a person or property
therein.26 "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."27
"A private property owner may restrict the use of its property to those
purposes for which it is lawfully dedicated so long as the restrictions are not
discriminatory."28 "The right to exclude extends even if the property is otherwise
open to the public."29 When a private property owner notifies a person that his or
her license, invitation, or privilege to enter that property has been revoked, that
person's presence may be unlawful for the purposes of proving the first element
of second degree burglary.30
Here, Kristi Daggett, an "asset protection associate" for Wal-Mart, testified
that she "trespassed" or revoked Smith's license, invitation, or privilege to enter
any Wal-Mart for his lifetime.31 Daggett testified that in 2007 she caught Smith
26 RCW9A.52.030(1); see Brunson, 128 Wn.2d at 104-05.
27RCW9A.52.010(5).
28 State v. Kutch, 90 Wn. App. 244, 247, 951 P.2d 1139 (1998).
29 id,
30 Id, at 249.
31 Report of Proceedings (Aug. 30, 2011) at 21, 27-28.
8
No. 67709-8-1/9
shoplifting.32 After she apprehended Smith, she handcuffed him and called the
Everett Police Department.33 She completed a "face sheet," which contained
Smith's personal information and the items that he shoplifted.34 She also took a
photograph of him to put in Wal-Mart's files.35 Daggett testified that she "issued"
Smith a "lifetime restriction" from Wal-Mart.36 She did not read the "Notification of
Restriction from Property" document word-for-word but gave Smith the following
explanation:
A. Because he was actually handcuffed, I went through the
process of explaining what it meant. I almost, with very little
variation, say the same thing every time I trespass somebody. And
so I will start it and I will say you're no longer welcome to Wal-Mart,
any Wal-Mart anywhere in the world, the rest of your life. Ifyou
come back, you can and will be charged with criminal trespassing.
If you come back and take something again, irrespective of dollar
amount, they can choose to pursue burglary charges against you,
making it an automatic felony.
Then I ask if they understand the trespass. And often they
say yes. And if they do, I will kind of reiterate the points again. Do
you understand it's for life? Yes. Do you understand that it's all
Wal-Marts and Wal-Mart entities, including Sam's Club and
neighborhood markets? Yes. And then I tell them that it remains
on file with Wal-Mart.[37]
32 Id. at 24-25.
33 Id. at 25.
34 l± at 26.
35 jd, at 29.
36 id at 27.
37
Report of Proceedings (Aug. 30, 2011) at 28-29, 31.
No. 67709-8-1/10
She also testified that Smith did not sign the "Notification of Restriction from
Property" form because he was handcuffed.38
Smith testified that he had not seen the "Notification of Restriction from
Property" document until he saw it in the discovery file for his case.39 He did not
recall whether the document was read to him.40 He testified that he did not
believe that he was prohibited from entering Wal-Mart, and he had been in the
store six or seven times in the "recent past" and was never approached about
being there.41 Smith also testified that he had been "trespassed" from other
stores, but he did not return to those stores because he knew if he was "caught,"
he could face criminal charges.42
Deferring to the trier of fact's resolution of conflicting testimony and
viewing the evidence in light most favorable to the State, this evidence was
sufficient to establish that Wal-Mart notified Smith that his license, invitation, or
privilege from entering the store had been revoked. Therefore, there was
sufficient evidence that Smith unlawfully entered Wal-Mart.
Smith argues that there was insufficient evidence to prove that he
received notice of the restriction. He cites State v. Kutch43 and points out factual
38 id at 31.
39 Report of Proceedings (Aug. 30, 2011) at 84.
40 id at 85.
41 id at 84-85.
42 id at 88.
43 90 Wn. App. 244, 951 P.2d 1139 (1998).
10
No. 67709-8-1/11
distinctions between that case and this case to argue that the evidence does not
support a finding beyond a reasonable doubt that Smith received notice of the
restriction. But these factual distinctions are not material.
In Kutch, Division Three of this court affirmed Robert Kutch's conviction of
second degree burglary.44 There, the Mervyn's store security guards caught
Kutch shoplifting in the store.45 At that time, Kutch signed a form that notified him
that his invitation to enter the Yakima Mall was revoked for one year.46 Kutch
was not given a copy of the form.47 The court concluded that Kutch was
"sufficiently notified that he was no longer invited into the mall as a member of
the general public."48
Here, the fact that Smith did not sign the "Notification of Restriction from
Property" form and that he did not receive a copy of this form does not mean that
the evidence was insufficient to establish notice. In coming to its conclusion in
Kutch, Division Three explained that Kutch cited no authority that would require
Kutch to receive a copy of the notice.49 And the court noted that "[a] verbal
notice might just as adequately inform him that his invitation had been
44 id at 249-50.
45 id at 246.
46 id
47 id at 248.
48 Id at 249.
49 Id. at 248.
11
No. 67709-8-1/12
revoked."50 Thus, the factual distinctions between Kutch and this case are not
material, and Kutch supports Smith's conviction.
Smith also contends that the restriction notice is ambiguous as to how
long it applies because the written notice "is silent as to its duration."51 He again
attempts to distinguish this case from Kutch. in which the restriction notice stated
that it was applicable for one year.52 While the written notice here did not
indicate the length of the restriction, Daggett testified that she verbally told Smith
that the restriction would last his lifetime. This was sufficient evidence of the
length of the restriction. Smith does not cite any authority that a verbal
notification of the duration of the restriction is inadequate.
We affirm the judgment and sentence.
,X
WE CONCUR:
-c/j^jAay* ^Q^yric^. ^
50 id
51 Appellant's Opening Brief at 17.
52 id (citing Kutch. 90 Wn. App. at 248-49).
12