State of Washington v. Taressa Mae Marchand

FILED
DECEMBER 12, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 36275-2-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
TARESSA MAE MARCHAND, )
)
Appellant. )
PENNELL, A.C.J. — Taressa Marchand appeals her Okanogan County conviction
for first degree criminal trespass, arguing the court’s instructions did not require the jury
to find facts sufficient for a conviction. This claim of error is well taken. We therefore
reverse.
BACKGROUND
Taressa Marchand was charged with three counts of second degree burglary and
one count of residential burglary, in addition to other charges not relevant to this appeal.
All of Ms. Marchand’s burglary charges pertained to property owned by an individual
named Clint Ames. Two of the second degree burglary counts alleged illegal entry into
outbuildings owned by Mr. Ames. The other second degree burglary count alleged illegal
entry into a fenced-in area on property owned by Mr. Ames. The residential burglary
count pertained to Mr. Ames’s home.
No. 36275-2-III
State v. Marchand
Ms. Marchand’s case proceeded to a jury trial. The court accepted the parties’
agreement to instruct the jury on the lesser included offense of criminal trespass for each
of the burglary counts. After trial, Ms. Marchand was acquitted of burglary and convicted
of four counts of first degree criminal trespass.
Ms. Marchand appeals.
ANALYSIS
Ms. Marchand’s only claim on appeal is that her conviction for first degree criminal
trespass, as a lesser included offense to count 1, was based on insufficient facts. Count 1
originally charged Ms. Marchand with second degree burglary of a “fenced-in area
surrounding the property of Clint Ames.” Clerk’s Papers (CP) at 39. The jury acquitted
Ms. Marchand of this original count, but it convicted her of first degree criminal trespass
as a lesser included offense.
The jury was provided the following instruction for the lesser included offense
to count 1:
To convict the defendant of the lesser included crime of Criminal
Trespass in the First Degree in count one, each of the following elements of
the crime must be proved beyond a reasonable doubt:
(1) That on or about March 18th 2018, the defendant knowingly
entered or remained in a building to wit: fenced area surrounding Clint
Ames Property at [address of property];
(2) That the defendant knew that the entry or remaining was
unlawful; and
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No. 36275-2-III
State v. Marchand
(3) That this act occurred in the State of Washington.
If you find from the evidence that each of these elements has been
proved beyond a reasonable doubt, then it will be your duty to return a
verdict of guilt. On the other hand, if, after weighting all of the evidence,
you have a reasonable doubt as to any one of these elements, then it will be
your duty to return a verdict of not guilty.
CP at 381.
As Ms. Marchand correctly points out, first degree criminal trespass in violation
of RCW 9A.52.070 does not encompass mere entry into a fenced area. State v. Joseph,
189 Wash. 2d 645, 652-53, 405 P.3d 993 (2017); State v. Brown, 50 Wash. App. 873, 878,
751 P.2d 331 (1988), abrogated on other grounds by In re Pers. Restraint of Heidari,
174 Wash. 2d 288, 274 P.3d 366 (2012). The offense covers only ordinary structural
buildings. Joseph, 189 Wash. 2d at 653. While the crime of second degree criminal trespass
in violation of RCW 9A.52.080 covers fenced areas, first degree criminal trespass does
not. Joseph, 189 Wash. 2d at 653; Brown, 50 Wash. App. at 878.
Because mere entry into a fenced area can never constitute first degree criminal
trespass, the jury’s guilty verdict as to count 1 was invalid. The State claims we should
affirm under a theory of harmless error, pointing out Ms. Marchand illegally entered
a variety of buildings on Mr. Ames’s property on the night of her offense conduct. 1
1
The State does not request remand for resentencing on the offense of second
degree trespass.
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No. 36275-2-111
State v. Marchand
We reject the State's approach. Ms. Marchand's jury was never asked whether the area
trespassed in count 1 included a structural building and not simply a fenced area. For us to
sift through the record and try "to discern what a trial showed ... about the defendant's
underlying conduct" would violate Ms. Marchand' s rights under the Sixth Amendment
to the United States Constitution. Descamps v. United States, 570 U.S. 254, 269-70, 133
S. Ct. 2276, 186 L. Ed. 2d 438 (2013); see also Apprendi v. New Jersey, 530 U.S. 466,
483-84, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
CONCLUSION
Ms. Marchand's conviction for first degree criminal trespass as charged in the
lesser included offense to count 1 is reversed.
A majority of the panel has determined this opinion will not be printed in
the Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Q
Pennell, A.CJ.
WE CONCUR:
Fearing, J~ )
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