State Of Washington v. Anthony Lee Beckwith ( 2018 )

FILED
COURT OF APPEALS, DIY I
.STATE OF WASHINGTON
2010 MY It MI 10: 21
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
)
STATE OF WASHINGTON, ) No. 75962-1-I
)
Respondent, ) DIVISION ONE
)
v. )
)
ANTHONY LEE BECKWITH, ) UNPUBLISHED
)
Appellant. ) FILED: May 14, 2018
)
Cox, J. —Anthony Beckwith appeals his conviction for first degree criminal
trespass, arguing that the trial court should have dismissed the residential
burglary charge at the end of the State's case in chief. Because the jury was
instructed on the lesser included offense of criminal trespass, and the evidence
was sufficient to prove that Beckwith committed that crime, we affirm his
conviction.
Bellingham police officers responded to a call from Cynthia Bach that she
had seen unknown people in a house that she had rented to tenants who were
out of town. While driving by the house, Bach had seen that the back door was
wide open and that the window on that door was broken. When officers knocked
on the front door of the house, Beckwith answered.
Beckwith first told the officers that he rented the house and then he said
that he was watching the house for his friend. He told officers that he could not
No. 75962-1-1/2
remember the name of the friend. In addition to Beckwith, there were five people
in the house.
Inside the house, officers found drug paraphernalia and garbage. In
addition, a toilet on the second floor was broken. The State charged Beckwith
with one count of first degree residential burglary.
At the end of the State's case in chief, Beckwith moved for a directed
verdict based on insufficient evidence. The trial court denied the motion, and the
jury was instructed on residential burglary as well as the lesser included offense
of first degree criminal trespass. The jury convicted Beckwith of first degree
criminal trespass, and he was sentenced accordingly.
Beckwith appeals.
SUFFICIENCY OF THE EVIDENCE
Beckwith argues that the trial court abused its discretion in denying his
motion for a directed verdict because there was insufficient evidence to support a
conviction for residential burglary. He specifically claims that the State failed to
present sufficient evidence for the jury to infer that he entered or remained in the
house with the intention to commit a crime therein) We hold there was sufficient
evidence to convict him based on the jury verdict on first degree criminal
trespass.
1 See RCW 9A.52.025(1).
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No. 75962-1-1/3
"A sufficiency challenge admits the truth of the State's evidence and
accepts the reasonable inferences to be made from it."2 On review, we will
consider both circumstantial and direct evidence as equally reliable and defer to
the trier of fact on issues of conflicting testimony, witness credibility, and the
persuasiveness of the evidence.3 "We will reverse a conviction 'only where no •
rational trier of fact could find that all elements of the crime were proved beyond
a reasonable doubt.'"4
To convict Beckwith of residential burglary, the State had to prove beyond
a reasonable doubt that Beckwith entered or remained unlawfully in a dwelling
"with intent to commit a crime against a person or property therein."5 But,
Beckwith was not convicted of residential burglary. Instead, the jury convicted
him of the lesser included offense of first degree criminal trespass.
To convict Beckwith of first degree criminal trespass, the State had to
prove beyond a reasonable doubt that he "knowingly enter[ed] or remain[ed]
unlawfully in a building."6 Beckwith does not argue that there was insufficient
evidence to prove that he knew he did not have permission to enter or remain in
the house. Instead, he argues that because the trial court should have dismissed
2 State v. O'Neal, 159 Wash. 2d 500, 505, 150 P.3d 1121 (2007).
3 State v. Thomas, 150 Wash. 2d 821, 874-75, 83 P.3d 970 (2004).
4 Statev. Fedorov, 181 Wash. App. 187, 194, 324 P.3d 784(2014)(quoting
State v. Smith, 155 Wash. 2d 496, 501, 120 P.3d 559(2005)).
5 RCW 9A.52.025(1).
6 RCW 9A.52.070.
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No. 75962-1-1/4
the residential burglary charge with prejudice, his conviction for criminal trespass
must be vacated. We disagree.
In a criminal case, a defendant has multiple opportunities to challenge the
sufficiency of the evidence: before trial, after the State puts on its case in chief, at
the end of all the evidence, after the verdict, and on appea1.7 But after a verdict,
this court will only review the sufficiency of evidence supporting that verdict, not
the propriety of the denial of the motion to dismiss.8
In his reply brief, Beckwith relies on State v. Devitt as support for his
contention that this court should consider whether there was sufficient evidence
to support a conviction for residential burglary at the close of the State's case.8
His reliance is misplaced because in Devitt, the jury convicted Steven Devitt of
the crime of residential burglary.1° Therefore, the appellate court did not consider
the propriety of the trial court's ruling on Devitt's directed verdict motion but
instead whether sufficient evidence supported his conviction.11
Beckwith argues that despite the jury verdict on criminal trespass, this
court should consider the propriety of the trial court's denial of his motion for
directed verdict because, "at no time during [his] motion . . . did the State ask the
7 State v. Jackson, 82 Wash. App. 594, 607-08, 918 P.2d 945(1996).
Id. at 608; see State v. Johnston, 100 Wash. App. 126, 132-33, 996 P.2d
8
629(2000).
9 152 Wash. App. 907, 913, 218 P.3d 647(2009).
1° Id. at 910.
11 Id. at 913.
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No. 75962-1-1/5
court to make an explicit finding that the elements of the uncharged offense of
trespass had been proven beyond a reasonable doubt." We are unpersuaded.
In considering Beckwith's motion for directed verdict, the trial court stated
its understanding "that the criminal trespass in the first degree would be a lesser
included, and the only difference in the elements would be an intent to commit a
crime against a person and property."12 It observed that the State had "clearly"
established a trespass, or "at least enough evidence to go to the jury with a
trespass." Beckwith did not object to the trial court's observation about criminal
trespass but instead informed the trial court that he was putting "forward the
defense on the criminal trespass that the State has to prove the reasonableness
of that." He also proposed a jury instruction on criminal trespass.
The State did not need to ask the trial court to explicitly find the elements
of criminal trespass because the trial court observed that the State had
established those elements sufficiently to go to the jury. And Beckwith did not
object, but instead acknowledged that the State would have to prove the
elements of criminal trespass.
JURY INSTRUCTIONS
Beckwith also argues that his conviction must be reversed because the
State pursued an "all or nothing approach" by arguing only the elements of
residential burglary. He argues that he was never charged with criminal trespass
12 See State v. Stevens, 158 Wash. 2d 304, 310, 143 P.3d 817(2006).
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No. 75962-1-1/6
and the State failed to request the lesser included instruction, so his conviction
on that offense must be set aside. We again disagree.
Although the State never charged Beckwith with criminal trespass, RCW
10.61.006 provides that a "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."13 "In such instances, the State does
not have to notify the defendant that he may be convicted of the lesser included
offense."14 Here, the trial court's discussion when considering Beckwith's
directed verdict motion, and the statements of Beckwith's counsel during that
time, show that Beckwith had ample notice he could be found guilty of first
degree criminal trespass even though the State never charged him with that
crime.
In addition, although the State never requested a jury instruction on
criminal trespass, the jury was instructed on the elements of that crime. Under
RCW 10.61.006 either the defendant or the State may "present a lesser included
offense to the jury."15 "[VV]hether to request a jury instruction on lesser included
offenses is a tactical decision" and the defendant may decide whether to pursue
an all or nothing approach.16
13 See State v. Gallegos, 65 Wash. App. 230, 234, 828 P.2d 37(1992).
14 State v. Taylor, 90 Wash. App. 312, 322, 950 P.2d 526 (1998).
15 State v. Witherspoon, 180 Wash. 2d 875, 886, 329 P.3d 888(2014).
16 Id.
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No. 75962-1-1/7
Here, it was Beckwith who made the tactical decision not to pursue an "all
or nothing approach" by requesting the criminal trespass instruction. Also, during
closing arguments, Beckwith's counsel argued that the evidence at most
supported a conviction for criminal trespass.
By failing to object when the trial court observed that there was sufficient
evidence of first degree criminal trespass to go to the jury, agreeing that the
State would have to prove the elements of that crime, requesting a jury
instruction on criminal trespass, and arguing that the evidence at most supported
a conviction for that crime, Beckwith made it clear that he had made the tactical
decision not to pursue an all or nothing strategy.17 Thus, he waived any
objection to the jury's consideration of the criminal trespass charge.
Finally, because the jury was instructed on criminal trespass, Beckwith's
reliance on In re Heidari is misplaced.18 In Heidari, Mansour Heidari's conviction
for second-degree child molestation was reversed due to insufficient evidence.19 •
The supreme court held that remand for entry of a conviction on a lesser offense
of attempted child molestation was barred because the jury had not been
explicitly instructed on the lesser offense.2° But here, the jury was explicitly
instructed on criminal trespass.
17 Id.
18 174 Wn.2d 288, 274 P.3d 366 (2012).
19 Id. at 290-91.
20 Id. at 293-94.
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No. 75962-1-1/8
In sum, Beckwith presented his arguments regarding first degree criminal
trespass during his closing, the jury was instructed on the State's burden to prove
that crime, and it convicted Beckwith of that crime. Therefore, he may only
challenge the sufficiency of the evidence in support of that conviction.21
Considering the evidence in the light most favorable to the State, substantial
evidence supports beyond a reasonable doubt the jury's verdict that Beckwith
committed the crime of first degree criminal trespass.
We affirm the judgment and sentence.
'0-7C "j7
WE CONCUR:
13-ecioR
21 See State v. Allen, 116 Wash. App. 454, 465 n.6, 66 P.3d 653(2003).
8