Opinion
No. 57309-8-I.
November 13, 2006.
Appeal from a judgment of the Superior Court for Snohomish County, No. 05-1-01969-1, Gerald L. Knight, J., entered November 10, 2005.
Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, Seattle, WA.
Washington Appellate Project, Attorney at Law, Seattle, WA.
Susan F. Wilk, Washington Appellate Project, Seattle, WA.
Rodney Whitt/Doc#901740, (Appearing Pro Se), Cedar Creek Correctional Facility, Little Rock, WA.
Susan F. Wilk, Washington Appellate Project, Seattle, WA.
Counsel for Respondent(s), Mary Kathleen Webber, Snohomish County Prosecutors Office, Everett, WA.
Affirmed by unpublished per curiam opinion.
Rodney Whitt appeals his conviction for burglary in the second degree. There is substantial evidence to support the jury's finding that he intended to commit theft. The court did not abuse its discretion in denying his request for a jury instruction on the lesser included offense of criminal trespass in the first degree because the factual prong of the governing test is not satisfied. There being no other arguments of substance, we affirm.
On July 21, 2005, at 5:24 a.m., Deputy John Kuska of the Snohomish County Sheriff's Department was dispatched to Airport Way Family Dentistry at 12121 Highway 99 South after a burglar alarm was triggered. Deputy Kuska arrived at the scene at 5:50 a.m. and conducted a perimeter check. He observed that the door to the storage shed on the north-east corner of the building appeared as if it had been forced open. Whitt walked out of the storage shed as Deputy Kuska approached. Deputy Kuska immediately handcuffed and searched Whitt. Whitt was carrying a small flashlight, hacksaw, and a screwdriver with a broken tip. Deputy Kuska also found a grocery cart next to the door of the shed. The storage shed contained nitrous oxide tanks and copper piping connecting the tanks to the dentist office.
Whitt was charged and convicted of burglary in the second degree. He now appeals.
SUFFICIENCY OF THE EVIDENCE
Whitt first argues that there was insufficient evidence to support his second degree burglary conviction. We disagree.
The standard of review on a challenge to the sufficiency of the evidence is whether, after viewing the evidence most favorably to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Where otherwise unnecessary elements are included without objection in the "to convict" instruction, the State assumes the burden of proving those elements. Criminal intent may be inferred from the facts and circumstances surrounding the commission of an act or acts. In addition, criminal intent may be inferred from conduct that plainly indicates such intent as a matter of logical probability.
State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980).
State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998).
State v. Bergeron, 105 Wn.2d 1, 19-20, 711 P.2d 1000 (1985).
Id. at 20; see also State v. West, 18 Wn. App. 686, 690, 571 P.2d 237 (1977), review denied, 90 Wn.2d 1001 (1978).
RCW 9A.52.030(1) states the elements of second degree burglary and provides:
A person is guilty of burglary in the second degree if, with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a building other than a vehicle or a dwelling.
However, the "to-convict" instruction included an additional element, intent to commit a specific named crime — theft — inside the burglarized premises, which is generally not an "element" of the crime of burglary. The instruction read:
Bergeron, 105 Wn.2d at 4.
To convict the defendant of the crime of burglary in the second degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 21st day of July, 2005, the defendant entered or remained unlawfully in a building;
(2) That the entering or remaining was with intent to commit a crime of theft against a person or property therein; and
(3) That the acts occurred in the State of Washington.
Clerk's Papers at 41.
The State did not object to the "to convict" instruction. Thus, the State had the burden of proving, beyond a reasonable doubt, that Whitt intended to commit theft.
There was substantial evidence that Whitt intended to commit theft. Whitt was found at approximately 5:50 a.m. trespassing in the shed, with a hacksaw, flashlight and screwdriver in his possession. Deputy Kuska heard thumping sounds as he approached the shed, which sounded like someone was hitting something together. There was damage to the partition around the tanks within the shed and the tanks had been moved. One tank was leaning over, only being held up by the chain which secured it to the wall. In addition, Deputy Kuska observed that Whitt had grease on his hands and greasy handprints were also found on the shed door and on the nitrous oxide tanks inside the shed. Evidence that the tanks within the shed were disturbed, that greasy prints were on the tanks and that Whitt's hands were greasy, and that a grocery cart was found at the scene supports the inference that Whitt intended to commit theft.
The evidence was sufficient to support his conviction.
LESSER INCLUDED INSTRUCTION
Whitt also argues that the trial court abused its discretion by refusing to instruct the jury on the lesser included offense of criminal trespass in the first degree. Because Whitt is unable to establish that the factual prong of the governing test is satisfied, we disagree.
A defendant is entitled to an instruction on a lesser included offense if the two-prong test of State v. Workman is satisfied:
90 Wn.2d 443, 584 P.2d 382 (1978).
First, each of the elements of the lesser offense must be a necessary element of the offense charged. Second, the evidence in the case must support an inference that the lesser crime was committed.
Id. at 447-48 (citations omitted).
A requested jury instruction on a lesser included offense should be administered if the evidence would permit a jury to rationally find a defendant guilty of the lesser offense and acquit him of the greater.
State v. Warden, 133 Wn.2d 559, 563, 947 P.2d 708 (1997).
The issue here is whether the factual prong of the test is satisfied. At trial, defense counsel proposed a theory that someone else broke into the shed and after hearing the alarm Whitt went into the shed to investigate the disturbance. Thus, Whitt argues, he was only criminally trespassing when Deputy Kuska found him in the shed. Whitt points out that the alarm was triggered half an hour before Deputy Kuska's arrival, leaving plenty of time for the real perpetrator to leave the scene undetected.
This theory, however, overlooks substantial evidence presented at trial. Whitt was found with grease on his hands and greasy hand prints were also found on the shed door and the nitrogen tanks. This evidence, combined with the fact that Whitt was in possession of several tools commonly used in burglaries, supports the judge's decision not to give the instruction. The factual prong is not satisfied because there is no showing that only the lesser crime of criminal trespass was committed.
See State v. Fernandez-Medina, 141 Wn.2d 448, 6 P.3d 1150 (2000) (holding that the trial court is only required to give a lesser included offense instruction where the evidence raises an inference that only the lesser included offense was committed to the exclusion of the charged offense).
SPEEDY TRIAL
Finally, Whitt argues in his Statement of Additional Grounds for Review Because the record is insufficient to review this claim, we decline to address it.
Whitt was charged with one count of second-degree assault on July 21, 2005. His original speedy trial expiration date under CrR 3.3 was October 3, 2005. The trial court granted two motions to continue, and the jury trial did not commence until October 26, 2005. However, the motions for continuance are not part of the record on appeal. Without them, we cannot determine if the court abused its discretion by granting the continuances.
We affirm the judgment and sentence.
ELLINGTON and GROSSE, JJ., concur.