Seattle Attorneys Blog
Under Washington criminal law, a defendant commits residential burglary if they enter or unlawfully remain in a dwelling, other than a vehicle, with the intent to commit a crime against a person or property inside. RCW 9A.52.025. To convict a defendant of residential burglary, the state must prove that the defendant entered a dwelling, while other forms of burglary only require the state to prove the defendant entered a building. A defendant recently challenged his conviction of residential burglary, arguing a fenced back yard was not a dwelling.
According to the opinion of the appeals court, which considered the facts in a light most favorable to the prosecution, a homeowner saw the defendant attempting to enter the home’s back door. The homeowner testified the defendant had a hammer and a crowbar and was striking the deadbolt. The defendant saw the homeowner and stopped and ran. The homeowner tripped him in the front yard and he dropped his bag and the crowbar. The homeowner testified the defendant tried to hit him with the crowbar and bite him. The homeowner held his arm around the defendant’s neck until the police got there.
The defendant was ultimately charged with residential burglary, possession of burglary tools, third degree assault, and two counts of bail jumping.
The homeowner testified a fence four to six feet high surrounded his back yard with no gaps. The back door opened to an uncovered patio. The yard could be accessed through two gates or the detached garage.
The defendant moved to dismiss the residential burglary charge, arguing the state had not proved he entered a dwelling. The trial court denied the motion.
The defendant was found guilty as charged. He appealed the residential burglary and third degree assault convictions.
The defendant argued the state failed to prove he was guilty of residential burglary because the yard was not a dwelling. The state argued the fenced yard could be considered part of the house and the house was used for lodging, so it was a jury question whether the fenced area constituted part of the house.
Generally, the determination of whether a space is part of a dwelling is a fact question, but interpretation of a statute is a question of law. RCW 9A.04.110 sets forth the definitions of “dwelling” and “building” for purposes of the criminal statutes. “Dwelling” is defined as “any building or structure, though movable or temporary, or a portion thereof, which is used or ordinarily used by a person for lodging.” A “building” includes a dwelling or fenced area.
The defendant conceded that entering the fenced yard could constitute second degree burglary, but argued that a fenced area is not generally used for lodging and is therefore not a dwelling. The state agreed that a fenced area that was not connected to a residence would not constitute a dwelling unless it was actually used for lodging, but argued a fenced area connected to a house could be considered part of the dwelling.
The appeals court acknowledged the definition of “building” includes the example of a “fenced area,” but noted it also states the examples are “in addition to its ordinary meaning. . .” The court summarized the dictionary definition of “building” as “the secured area enclosed by walls and a roof.”
The appeals court noted that applying the ordinary definition of “building” maintained a distinction between residential burglary and second degree burglary. The defendant argued the legislature’s use of both a dwelling and a fenced area as examples of a building suggested those two terms meant different things.
The appeals court also considered the legislative history of the residential burglary statute, noting the purpose was for the crime of residential burglary to apply to a person entering a dwelling to commit a crime against a person or property, while second degree burglary would continue to apply when a person entered a building that was not a dwelling, including a fenced area. The appeals court determined that even if “building” is an ambiguous term, the residential burglary statute’s legislative history supported applying the word’s ordinary meaning.
The appeals court further noted that the rule of lenity would require it to construe the statute against the state, if it is ambiguous.
The appeals court held that a building can include a dwelling or a fenced area, but these are separate structures. The appeals court further held that a fenced area that is not contained within the roof and walls of a building is not part of the building just because it is adjacent to the house.
The appeals court concluded the evidence was insufficient to support a residential burglary conviction because the defendant was found inside the fenced area but outside the building used for lodging.
The defendant also argued the evidence was insufficient to support a third degree assault conviction because the prosecutor failed to prove he committed residential burglary. A defendant is guilty of third degree assault if they assault another “with intent to prevent or resist. . . lawful apprehension or detention of himself. . .” RCW 9A.36.031(1)(a). The court instructed the jury that the state needed to prove that the defendant assaulted the homeowner and did so “with intent to prevent or resist the lawful apprehension or detention.” A person may lawfully use force to deliver a person who has committed a felony to law enforcement. RCW 9A.16.020(2). The court instructed the jury that residential burglary was a felony, but did not identify any other felonies for the jury.
The appeals court acknowledged that the defendant’s entry into the fenced area could constitute a felony even if it is not residential burglary, but the court did not identify any other felonies for the jury. Therefore, if the evidence was insufficient to support a residential burglary charge, it was also insufficient to support the third degree assault conviction. The state conceded this point.
The appeals court reversed the residential burglary and third degree assault convictions, but affirmed the other convictions. The court remanded the case to the trial court to resentence the defendant.
In this case, the appeals court determined the state did not prove the defendant committed residential burglary or third degree assault. If you have been charged with a crime, an experienced Washington criminal defense attorney can help. Schedule a consultation with Blair & Kim, PLLC, at (206) 622-6562.