Opinion
No. 36802-1-II.
February 24, 2009.
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 07-1-00036-7, F. Mark McCauley, J., entered September 24, 2007.
Reversed and remanded by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, C.J., and Hunt, J.
Anthony S. Heller appeals his conviction for second degree burglary arguing that (1) the State violated his right to a timely trial, (2) jury instruction 11 violated his right to due process by allowing the jury to improperly infer Heller's intent to commit a crime, (3) sufficient evidence does not support his conviction, and (4) his counsel was ineffective. We agree with Heller that jury instruction 11 was improper and reverse. But because Heller's trial was timely and the evidence was sufficient to support the jury's guilty verdict as a matter of law, we reverse and remand for a new trial.
FACTS
Factual Background
On January 7, 2007, at approximately 9:00 pm, Jaramie Smith heard an unfamiliar vehicle entering the parking lot of his apartment complex located at 101 North B Street. Shortly after entering the parking lot, the driver turned the car lights off and drove slowly through the parking lot. After about three minutes, Smith saw a man get out of the vehicle and walk between two of the apartment buildings towards the laundry room. Smith lost sight of the man as he walked between the buildings but, shortly thereafter, Smith heard banging noises coming from the laundry room. Smith testified that the noises sounded like "hitting something that had change in it . . . like metal on metal." 2 Report of Proceedings (RP) at 45.
The noise continued for about one and a half minutes before Smith decided to go to the laundry room to investigate. When Smith got to the back of the laundry room, he saw a man halfway through the laundry room window, with his chest on the windowsill and the lower half of his body hanging out of the window. Smith could not tell whether the man was crawling in or out the laundry room window. When Smith yelled, "[w]hat are you doing," the man pulled himself out of the window, looked at Smith, dropped something, and took off running. 2 RP at 42. Raymond Fuller, another resident of the apartment complex, heard the commotion and spoke with Smith while Fuller's girl friend called 911.
Officer John Wheeler responded to the 911 call. After taking pictures of the laundry room window, Wheeler checked the immediate area for a possible suspect. Based on one of the witnesses' descriptions, he was looking for a "black male wearing a blue baseball style hat, black jacket and blue jeans." 2 RP at 74. Shortly after beginning his search, Wheeler spotted Heller, who matched the description. Wheeler approached Heller and Heller explained that he was walking from apartments located at 1015 Oakhurst Drive. Wheeler took Heller back to the 101 North B Street apartments where Smith identified Heller as the man he had seen halfway through the laundry room window. Fuller also identified Heller as the man he had seen drive into the parking lot and get out of the car.
After arresting Heller, Officer Wheeler noticed miscellaneous tools, including wrenches, inside Heller's vehicle; Wheeler did not specifically remember seeing screwdrivers in the truck, but Heller later testified that he had several small-to medium-sized screwdrivers in the truck. Wheeler also testified that the laundry room window was a sliding window and that someone had knocked it off its track. Although there were two coin-operated machines inside the laundry room, there was no evidence that they had been tampered with.
Procedural History
On January 19, 2007, the State charged Heller with second degree burglary and arraigned him on January 29. On March 27, Heller filed a Knapstad motion to dismiss the case with prejudice, arguing that there were no disputed facts and the undisputed facts failed to establish a prima facie case of his guilt. The trial court denied Heller's motion.
All dates occurred in 2007, unless stated otherwise.
State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986).
On April 5, Heller filed a motion to reconsider and a motion for a bill of particulars. The trial court denied Heller's motion to reconsider but agreed, since Heller's motion was untimely, to grant Heller's motion for a bill of particulars if Heller signed a waiver of time for trial. After the waiver, the last date the State could timely bring Heller to trial was July 10. A new trial date was set for June 19. On April 20, the State filed a bill of particulars.
On May 29, the State moved for a continuance based on the unavailability of the deputy prosecutor assigned to try the case. The assigned prosecutor and five other deputy prosecutors were going to be in South Carolina for training during the week of trial. Over Heller's objection, the trial court granted the State's motion and the trial was continued to July 17. Heller's jury trial began on July 17.
At trial, Heller testified that, on the evening of January 7, 2007, he went to a friend's house where he drank several beers. When Heller realized that he needed to relieve himself, he did not want to stop at a gas station because his "license [was] suspended[] and [he] had been drinking . . . and [he] didn't want to get stopped, so [he] pulled into . . . some apartments." 2 RP at 109-10. Heller further testified that he turned off his headlights when he drove into the parking lot out of habit and also because there were people in the parking lot and he did not want to shine the lights in their eyes. Heller also explained that he waited in the car for several minutes after he arrived because there were five or six people in the parking lot and he did not want to relieve himself in front of them.
After the residents left the parking lot, Heller testified that he walked between the buildings to relieve himself because he thought it was an alley. Heller further testified that when he "was relieving [him]self, and [he] leaned up on the window, . . . the window popped out open." 2 RP at 110. Heller stated that, after Smith asked him what he was doing, he ran because he thought Smith was holding something in his hand; Heller also testified that he lied to Officer Wheeler about where he had been that night because he had been drinking and his license was suspended. Heller also testified that he did not match the description of the suspect because he was wearing a light blue hat, a light blue shirt, blue jeans, and he was not wearing a jacket.
Over Heller's objection, the trial court gave jury instruction 11, which stated:
A person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein unless such entering or remaining shall be explained by evidence satisfactory to the jury to have been made without such criminal intent. This inference is not binding upon you and it is for you to determine what weight, if any, such inference is to be given.
Clerk's Papers (CP) at 112 (emphasis added).
On July 17, the jury found Heller guilty of second degree burglary. Heller timely appeals.
ANALYSIS
Timely Trial
A criminal charge not brought to trial within the time limits of CrR 3.3 must be dismissed with prejudice. CrR 3.3(h). We review the application of the speedy trial rule de novo. State v. Carlyle, 84 Wn. App. 33, 35-36, 925 P.2d 635 (1996). We review the trial court's decision to grant or deny a motion for a continuance for abuse of discretion. State v. Johnson, 132 Wn. App. 400, 412-14, 132 P.3d 737 (2006), review denied, 159 Wn.2d 1006 (2007). We will not disturb the trial court's decision unless the appellant demonstrates that the trial court's decision was manifestly unreasonable, or exercised on untenable ground or for untenable reasons. State v. Downing, 151 Wn.2d 265, 272-73, 87 P.3d 1169 (2004) (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)).
Heller argues that the trial court abused its discretion when it granted the State a continuance based on the unavailability of a prosecutor. Specifically, Heller argues that the trial court abused its discretion (1) because the State indicated it was prepared to go to trial shortly before asking for the continuance and (2) the State could have avoided the conflict if the prosecutor had declined to attend the training, since she was already "committed to [a] trial." Br. of Appellant at 7. We disagree. Although the trial court is ultimately responsible for ensuring compliance with the timely trial period, the State bears the primary duty to bring the defendant to trial in a timely manner. CrR 3.3(a); State v. Jenkins, 76 Wn. App. 378, 383, 884 P.2d 1356 (1994), review denied, 126 Wn.2d 1025 (1995). Under CrR 3.3, the court must set a criminal trial date within 60 days of arraignment for an in-custody defendant. CrR 3.3(b)(1)(i). When the applicable timely trial period has expired, the court must dismiss the charges if the defendant objects within 10 days of the date set for trial even if the defendant has not suffered prejudice. CrR 3.3 (d)(3), (h); State v. Swenson, 150 Wn.2d 181, 187, 75 P.3d 513 (2003); State v. Striker, 87 Wn.2d 870, 875-77, 557 P.2d 847 (1976); State v. Earl, 97 Wn. App. 408, 410, 984 P.2d 427 (1999). But the timely trial rules contain several exceptions that extend the timely trial time beyond 60 days. Excluded periods under CrR 3.3(e) include continuances and delays due to unavoidable or unforeseen circumstances that are beyond the control of the court or of the parties. CrR 3.3(e)(3), (8).
When a prosecutor is unavailable, a trial court generally has the discretion to grant the State a continuance unless there is substantial prejudice to the defendant in the presentation of his case. State v. Raper, 47 Wn. App. 530, 535, 736 P.2d 680 (citing State v. Brown, 40 Wn. App. 91, 94, 697 P.2d 583, review denied, 103 Wn.2d 1041 (1985)), review denied, 108 Wn.2d 1023 (1987). Courts have recognized that unavailability of a prosecutor due to illness, a prescheduled vacation, training, or a trial that has already begun is good cause for a continuance. State v. Chichester, 141 Wn. App. 446, 454, 170 P.3d 583 (2007) (citing Raper, 47 Wn. App. at 535; State v. Jones, 117 Wn. App. 721, 728-29, 72 P.3d 1110 (2003), review denied, 151 Wn.2d 1006 (2004)).
In exercising discretion to grant or deny a continuance, the trial court may consider many factors, including surprise, diligence, redundancy, due process, materiality, and maintenance of orderly procedure. Downing, 151 Wn.2d at 273 (citing State v. Eller, 84 Wn.2d 90, 95, 524 P.2d 242 (1974)).
Heller relies on Chichester to support his argument that the trial court abused its discretion when it granted the State's request for a continuance because the State had represented at the readiness hearing that it was prepared to go to trial. Heller's reliance is misplaced. In Chichester, the State confirmed at the readiness hearing that it was prepared to go to trial on Wednesday and Thursday of the upcoming week, and the trial court proceeded to set the trial calendar for eight cases based on the stated availability of the parties and witnesses. 141 Wn. App. at 449. After the trial court organized its calendar, the State stated that it could not try two cases on the same day. Chichester, 141 Wn. App. at 454. And, despite the trial court advising it at the readiness hearing that it should not expect a continuance, the State appeared on the morning of trial with a motion to continue and no alternative plan. Chichester, 141 Wn. App. at 454. Because two prosecutors were presenting on the morning of trial, the trial court suggested that each of them try one case, but the State rejected this idea because it had an office policy requiring supervision of new attorneys. Chichester, 141 Wn. App. at 454. Division One of this court held that the trial court acted within its discretion when it decided that maintaining a confirmed trial setting had a higher priority than the prosecutor's office policy and also found that the trial court had properly considered the inconvenience and expense that the continuance would have caused the defendant. Chichester, 141 Wn. App. at 454-55.
Here, unlike Chichester, the prosecutor did not represent at the May 29, 2007 pretrial conference that she was prepared to proceed on the scheduled trial date and there were no other prosecutors available to try the case. At the pretrial conference, three weeks before trial, Heller's trial counsel told the trial court, "We're going to prepare paperwork. We're ready for trial. Trial is set for June 19th." 1 RP at 33. The State responded, "Correct." 1 RP at 33. During the same docket, the State recalled the matter and told the court,
We thought we were going to be able to enter an agreed order. This matter is set for trial on June 19th, and I'm going to be out of the state, going to training in South Carolina that entire week, and unfortunately also five of our deputy prosecutors will also be in training. Their July training is that week, so we have a limited number of attorneys available to try cases. I spoke with [an available prosecutor and she] has a case set that week which she has every anticipation is going to be going.
RP (May 29, 2007) at 2.
Because of the prosecutor's unavailability to try the matter, the State asked the trial court for a continuance. Before the State requested the continuance, the parties attempted to find an agreeable date for resetting the trial prior to the expiration of the timely trial deadline but, because of the State's training, the trial court's other trials, and defense counsel's other trials, they were unable to do so. The State did not indicate that it was prepared to go to trial on June 19 nor did it file a pretrial memorandum indicating that it was prepared to go to trial. To the contrary, the record suggests that the State had informed defense counsel prior to the hearing date that it would need a continuance.
"I called defense counsel and advised him of my unavailability and the need . . . for a continuance [but] they [were] unwilling to enter an agreed order re-setting this matter inside of speedy trial." CP at 66.
Furthermore, Heller did not demonstrate that he suffered prejudice as a result of the continuance. Heller makes a cursory argument that the delay prejudiced him because he "had rearranged his [own] schedule, and [his attorney] had to reschedule his own training in anticipation of the scheduled trial date." Br. of Appellant at 8. Although the requirement that a defendant make additional arrangements is an appropriate consideration of the trial court, the mere fact that Heller had to change his work schedule or travel is not per se prejudicial. Moreover, Heller fails to demonstrate how or to what extent changing his work schedule prejudiced him in the presentation of his defense.
Next, Heller argues that there was not good cause for the continuance because the prosecutor could have declined to attend the training. But as we stated above, the unavailability of a prosecutor to attend training may be good cause for a continuance. State v. Raper, 47 Wn. App. at 535 (citing Brown, 40 Wn. App. at 94). The purpose behind the rule that scheduled vacations may constitute good cause is to preserve the dignity of counsel or officers who might otherwise never be able to plan a vacation. See State v. Torres, 111 Wn. App. 323, 331, 44 P.3d 903 (2002), review denied, 148 Wn.2d 1005 (2003). And previously scheduled out-of-town trainings fall well within this rule. Thus, the prosecutor's scheduled training was good cause and it was not manifestly unreasonable for the trial court to grant a continuance due to the unavailability of the prosecutor.
Heller also argues that he suffered prejudice as a result of the continuance because his trial was set beyond the expiration of his timely trial date; but the fact that a trial is set past the original expiration of the time for trial as a result of a valid continuance alone does not constitute prejudice to a defendant's right to present his defense and dismissal is not required. See CrR 3(e)(3), (f).
Jury Instruction 11
Next, Heller argues that the trial court erred when it gave jury instruction 11 because (1) there was no evidence corroborating the inference instruction, (2) the "unless" clause of the instruction violated his right to due process by relieving the State of its burden to prove intent beyond a reasonable doubt, and (3) the instruction constituted an impermissible comment on the evidence. The State responds that (1) giving an inference instruction was proper; (2) although the instruction was improper, any error was harmless; and (3) the instruction did not constitute an unconstitutional judicial comment on the evidence. Although an inference instruction was appropriate, we agree with Heller that jury instruction 11 improperly shifted the burden of proof and a new trial is warranted.
The challenged jury instruction reads:
A person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein unless such entering or remaining shall be explained by evidence satisfactory to the jury to have been made without such criminal intent. This inference is not binding upon you and it is for you to determine what weight, if any, such inference is to be given.
CP at 112 (emphasis added).
We note that this inference of intent instruction was based on 11A Washington Practice: Washington Pattern Jury Instructions: Criminal 60.05 (2d ed. 1994) (WPIC). But the emphasized language above was eliminated prior to Heller's trial. See WPIC 60.05 (2d ed. 2005 Suppl.). The comments on WPIC 60.05 in the 2005 supplement state that this language was eliminated from the instruction because, under State v. Deal, 128 Wn.2d 693, 911 P.2d 996 (1996), the "unless" clause improperly shifted the burden of proof to the defendant. WPIC 60.05, cmt. at 8 (2d ed. 2005 Suppl.).
A. Including the Inference Instruction
As an initial matter, Heller argues that the trial court erred when it included the inference instruction because the State failed to produce any evidence that he intended to commit a crime inside the laundry room. Specifically, Heller argues that there was no evidence he intended to commit a crime because he did not have any tools with him when he was in the alley and the coin-operated laundry machines did not show evidence of tampering. The State responds that, in light of the evidence it presented at trial, an inference instruction was proper. We agree with the State.
Due process requires the State to bear the "`burden of persuasion beyond a reasonable doubt'" for every essential element of a crime. Deal, 128 Wn.2d at 698 (quoting State v. Hanna, 123 Wn.2d 704, 710, 871 P.2d 135, cert. denied, 513 U.S. 919 (1994)). Here, because Heller was charged with second degree burglary, the State was required to prove that Heller entered or remained unlawfully in the laundry room with the intent to commit a crime against a person or property therein. See RCW 9A.52.030.
Presumptions and inferences may assist the State in meeting its burden of proof. Deal, 128 Wn.2d at 699 (citing Hanna, 123 Wn.2d at 710). Generally, these evidentiary devices "fall into one of two categories: mandatory presumptions (the jury is required to find a presumed fact from a proven fact) and permissive inferences (the jury is permitted to find a presumed fact from a proven fact but is not required to do so)." Deal, 128 Wn.2d at 699 (citing Hanna, 123 Wn.2d at 710). Mandatory presumptions violate a defendant's right to due process if they relieve the State of its obligation to prove all of the elements of the crime charged. Deal, 128 Wn.2d at 699 (citing Sandstrom v. Montana, 442 U.S. 510, 523-24, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979)). In contrast, permissive inferences "do not necessarily relieve the State of its burden of persuasion because the State is still required to persuade the jury that the proposed inference should follow from the proven facts." Deal, 128 Wn.2d at 699 (citing Hanna, 123 Wn.2d at 710).
The permissive inference of criminal intent is found in RCW 9A.52.040. Our Supreme Court has approved instructing the jury on the permissive inference of intent to commit a crime "`whenever the evidence shows a person enters or remains unlawfully in a building.'" State v. Cantu, 156 Wn.2d 819, 826, 132 P.3d 725 (2006) (quoting State v. Grimes, 92 Wn. App. 973, 980 n. 2, 966 P.2d 394 (1998)); see also Deal, 128 Wn.2d at 699-700. When the permissible inference is only part of the State's proof supporting an element, the State must show that the presumed fact more likely than not flows from the proven fact. Cantu, 156 Wn.2d at 826 (quoting Deal, 128 Wn.2d at 700). But when the inference is the sole and sufficient proof of an element, the State must prove that the rational connection contained in the inference is true beyond a reasonable doubt. Deal, 128 Wn.2d at 699-700 n. 4. If the defendant's conduct is consistent with attempted burglary or malicious mischief, then the inference is not proper. State v. Jackson, 112 Wn.2d 867, 870, 774 P.2d 1211 (1989) (where the defendant merely attempted to enter the building and then fled). It is important to note that despite the appropriate use of permissible inferences, the State retains its burden to prove the element of intent beyond a reasonable doubt. Cantu, 156 Wn.2d at 827.
RCW 9A.52.040 states:
In any prosecution for burglary, any person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein, unless such entering or remaining shall be explained by evidence satisfactory to the trier of fact to have been made without such criminal intent.
Heller also suggests that, because the police did not find tools that Heller could have used to break into the coin-operated laundry machines, there is "absolutely no evidence presented to support [his] intent to commit a crime." Br. of Appellant at 15. But the particular facts that may be used to prove intent, such as carrying appropriate tools, are not required to prove intent; instead, RCW 9A.52.040 allows, but does not require, the jury to infer intent from all of the facts and circumstances surrounding Heller's conduct. State v. Bergeron, 105 Wn.2d 1, 20, 711 P.2d 1000 (1985) (intent may not be inferred from conduct that is patently equivocal, but it may be inferred from conduct that plainly indicates such intent as a matter of logical probability) (citing State v. Lewis, 69 Wn.2d 120, 124, 417 P.2d 618 (1966)).
Here, the State presented evidence that Heller crept into the parking lot with his lights off, waited in his vehicle until the tenants were inside, and then physically entered the laundry room by pushing open the window. The State also presented evidence that when Smith confronted Heller while Heller was halfway through the laundry room window, Heller fled the scene and, when Officer Wheeler subsequently apprehended him, Heller lied about where he had been that evening. See State v. Hebert, 33 Wn. App. 512, 515, 656 P.2d 1106 (1982) (evidence of flight probative of a defendant's consciousness of guilt). Because the State did not rely solely on an inference to establish Heller's criminal intent beyond a reasonable doubt, the trial court did not err by instructing the jury that it could infer Heller's intent from other proven facts.
B. Impermissible Mandatory Presumption
Next, Heller argues that, even if we find that giving an inference instruction was proper, the actual instruction in this case, jury instruction 11, created an impermissible mandatory presumption because it relieved the State of its burden to prove that he intended to commit a crime inside the laundry room. The State concedes that jury instruction 11 was improper but argues that the error was harmless. We agree with Heller.
As stated above, mandatory presumptions violate a defendant's right to due process if they relieve the State of its responsibility to prove all elements of the crime charged beyond a reasonable doubt. See Deal, 128 Wn.2d at 698 (quoting Hanna, 123 Wn.2d at 710). In order to determine whether a jury instruction creates a mandatory or permissive presumption, we examine whether a reasonable juror might interpret the presumption as mandatory. Deal, 128 Wn.2d at 701 (citing Sandstrom, 442 U.S. at 519). The constitutionality of mandatory presumptions is examined in light of the jury instructions read as a whole to make sure that the burden of persuasion on any element of the crime does not shift to the defendant. Deal, 128 Wn.2d at 701 (citing Hanna, 123 Wn.2d at 710). The burden of persuasion is deemed to be shifted if the trier of fact is required to draw a certain inference upon the failure of the defendant to prove by some quantum of evidence that the inference should not be drawn. Deal, 128 Wn.2d at 701 (citing Sandstrom, 442 U.S. at 517).
In Deal, our Supreme Court determined that language identical to the "unless" clause in the above instruction creates an impermissible mandatory presumption because it "essentially requires the [d]efendant to either introduce evidence sufficient to rebut the inference that he remained on the premises with intent to commit a crime, or concede that element of the crime." 128 Wn.2d at 701. Our Supreme Court noted that it had previously held that the "unless" clause in the above instruction "is a production-shifting presumption which, although `rarely necessary and usually ill advised,' may be submitted to a jury when the defendant produces evidence on the issue" of his intent in his case-in-chief. Deal, 128 Wn.2d at 702 (quoting State v. Johnson, 100 Wn.2d 607, 617-20, 674 P.2d 145 (1983), overruled by State v. Bergeron, 105 Wn.2d 1, 711 P.2d 1000 (1985)). But the distinction between production-shifting and persuasion-shifting presumptions is not helpful in this case because the "unless" clause did not require Heller to merely produce some evidence but, rather, it required him to produce "`evidence satisfactory to the jury'" that he entered the laundry room without criminal intent. See Deal, 128 Wn.2d at 702 (quoting WPIC 60.05). This language could have led a reasonable juror to understand that the burden of persuasion had shifted to Heller, and we find that such a danger did not disappear simply because Heller presented evidence that showed he did not have criminal intent. In other words, under this instruction, a reasonable juror could have concluded that, once the State produced evidence that Heller was in the laundry room window, the jury was compelled to find that Heller intended to commit a crime unless he produced a satisfactory explanation. This relieved the State of its burden of proving beyond a reasonable doubt that Heller entered the laundry room with the intent to commit a crime and violating Heller's right to due process. Because the "unless" clause in the challenged jury instruction impermissibly shifted the burden to Heller to rebut the inference that from his unlawful entry the jury could infer an intent to commit a crime, the instruction deprived him of his right to have the State prove all the elements of burglary beyond a reasonable doubt and he is entitled to a new trial.
Although Heller did not object to jury instruction 11 on this ground at trial, Heller may raise this due process error of constitutional magnitude affecting his right to a fair trial for the first time on appeal. See State v. Peterson, 73 Wn.2d 303, 306, 438 P.2d 183 (1968).
Heller requests that we enter a judgment of the lesser offense of first degree trespass in light of the impermissible mandatory presumption created by jury instruction 11. Some cases lend themselves to entry of judgment of guilt of a lesser-included offense. See State v. Gilbert, 68 Wn. App. 379, 387-88, 842 P.2d 1029 (1993) (reversing and remanding for entry of judgment on residential burglary when State failed to prove that assault occurred within the dwelling burgled, an essential element of first degree burglary); State v. Robbins, 68 Wn. App. 873, 877, 846 P.2d 585 (1993) ("An appellate court that reverses a conviction of possession with intent to deliver on grounds of insufficiency of the evidence may remand the case for entry of an amended judgment on the lesser included offense of possession."); State v. Brown, 50 Wn. App. 873, 878-79, 751 P.2d 331 (1988) (directing trial court to enter judgment of second degree criminal trespass when State failed to prove area in which defendant entered constituted a "building" within meaning of statute, an essential element of first degree trespass). For example, where the evidence of the value of the stolen property is insufficient to prove the greater charge but sufficient to prove the lesser, remand for entry of judgment on the lesser charge is appropriate. State v. Morley, 119 Wn. App. 939, 943-45, 83 P.3d 1023 (2004). But here, the element in question is the defendant's intent and, although there is sufficient evidence from which any reasonable jury could find that Heller intended to commit a crime in the building, it is not required to do so. Accordingly, the proper remedy is to remand for a new trial, not to take from a jury the determination of Heller's intent.
C. Harmless Error
The State argues that, although jury instruction 11 improperly shifted the burden of proof to Heller, the error was harmless. Because jury instruction 11 violated Heller's right to due process, it is an error of constitutional magnitude that we presume to be prejudicial. State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986); State v. Stephens, 93 Wn.2d 186, 190-91, 607 P.2d 304 (1980). And the State has not met its burden to prove that the error was harmless beyond a reasonable doubt. Guloy, 104 Wn.2d at 425. Accordingly, we reverse and remand for a new trial.
D. Judicial Comment on the Evidence
Heller also argues that, because the State failed to produce corroborating evidence of Heller's intent, the trial court's decision to give the jury instruction constituted an "unconstitutional comment on the evidence by the [trial] court." Br. of Appellant at 10. Because we hold that Heller is entitled to a new trial, we do not address this issue.
Sufficient Evidence
Heller next argues that sufficient evidence does not support his conviction because the State failed to present evidence that he (1) entered the laundry room or (2) intended to commit a crime in the laundry room. If true, Heller would be entitled to a dismissal of the burglary charge and entry of a judgment for first degree trespass he requests rather than a remand for a new trial.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency admits the truth of the State's evidence and all reasonable inferences that a trier of fact can draw from that evidence. Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d (1980). Credibility determinations are for the trier of fact and 99 are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).
In order to prove second degree burglary, the State was required to show that Heller unlawfully entered or remained unlawfully in the laundry room and that he intended to commit a crime against a person or property in the laundry room. See RCW 9A.52.030.
Because Heller challenges the sufficiency of the evidence, he admits the truth of the State's evidence and all reasonable inferences that may be drawn from it. See Salinas, 119 Wn.2d at 201. Here, the evidence, taken in the light most favorable to the State, shows that Heller crept into the parking lot of an apartment complex of which he was not a resident with his headlights off. Heller then waited inside his vehicle until the residents had gone inside the building, walked to the laundry room, pushed open the window, and climbed part way through. Shortly thereafter, and after hearing noises that could be construed as someone banging on the laundry coin boxes, Smith found Heller hanging partway through the window. After Smith confronted Heller, Heller pulled himself out of the window and ran. When stopped and questioned about the incident, Heller lied about where he had been that evening. On this evidence, a properly instructed jury could find beyond a reasonable doubt that Heller committed the crime of second degree burglary, therefore dismissal of the charge is not warranted.
Because we reverse and remand for a new trial on the second degree burglary charge, we do not address Heller's ineffective assistance of counsel claim.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT, J., and VAN DEREN, C.J., concur.