State v. Joseph

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SUSAN L. CARLSON
SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent, NO. 93710-9

V.

EN BANC
ANTHONY A. JOSEPH,

Petitioner. Filed 2 2 201?

STEPHENS, J.—^Anthony Albert Joseph was convicted of second degree

criminal trespass as a lesser included offense ofsecond degree vehicle prowling. He

challenges his conviction on the ground that unlawful entry into a vehicle is not a

trespass "in or upon premises of another." RCW 9A.52.080(1). This case presents

a challenging question of statutory interpretation because of the overlapping and

intersecting definitions of"building" and "premises" in Title 9A RCW. The Court

of Appeals affirmed Joseph's conviction, concluding that a vehicle is a "premises"

for the purpose of the second degree trespass statute because a vehicle is a type of
State V. Joseph (Anthony A.), 93710-9

"building" and "premises" includes "any building." See State v. Joseph, 195 Wn.

App. 737, 739, 744, 381 P.3d 187 (2016), review granted, 187 Wn.2d 1009, 388

P.3d 497(2017). We affirm the Court of Appeals.

FACTS AND PROCEDURAL HISTORY

On October 4, 2014, police responded to a report of vehicle prowling. The

responding officer found Anthony Joseph asleep in an unlocked Chevy Blazer on a

public street in Ellensburg. The officer recognized Joseph and knew that he was

homeless. The officer contacted Joseph and told him to exit the vehicle.

Initially, Joseph said that he had the owner's permission; however, he then

admitted he did not, and was arrested for vehicle prowling. The State filed charges

of third degree assault and second degree vehicle prowling.' The matter proceeded

to a jury trial. The State soughtjury instructions on first and second degree criminal

trespass as lesser included offenses of the vehicle prowling charge. The trial court

refused to instruct the jury on first degree trespass, but instructed the jury on second

degree trespass, over Joseph's objection. The State asked the court to define the

term "premises" used in the second degree criminal trespass statute, but did not

^ The third degree assault charge was based on Joseph spitting on the arresting
officer. The jury found Joseph guilty on that charge, and it is not at issue here.

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submit a definitional instruction. The trial court did not define "premises," but

allowed the parties to argue whether this term included a motor vehicle.

The jury acquitted Joseph of vehicle prowling, but found him guilty ofsecond

degree criminal trespass. Joseph appealed, and the Court of Appeals,Division Three

affirmed his conviction, holding that a motor vehicle constitutes premises for

purposes of second degree criminal trespass. See Joseph, 195 Wn. App. at 744.

ANALYSIS

This case presents a question of statutory interpretation under chapter 9A.52

RCW. That chapter encompasses the related crimes of burglary, criminal trespass,

and vehicle prowling. At issue is whether second degree criminal trespass is a lesser

included offense of second degree vehicle prowling. While only these two offenses

are directly before us, our analysis must take into account the context and potential

impact of our holding on the interpretation of interrelated statutes in this chapter.

See, e.g., Jametsky v. Olsen, 179 Wn.2d 756, 762, 317 P.3d 1003 (2014)(statutory

meaning is derived "from the context ofthe entire act").

A person is guilty of criminal trespass in the second degree when "he or she

knowingly enters or remains unlawfully in or upon premises of another under

circumstances not constituting criminal trespass in the first degree." RCW

9A.52.080(1). First degree criminal trespass, in turn, occurs when a person

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"knowingly enters or remains unlawfully in a building." RCW 9A.52.070(1). RCW

9A.52.010(3) defines "premises" to include "any building, dwelling, structure used

for commercial aquaculture, or any real property." No provision in chapter 9A.52

RCW defines "building," but that term is defined at the title level for the criminal

code:

[UJnless a different meaning plainly is required:

(5) "Building," in addition to its ordinary meaning, includes any
dwelling, fenced area, vehicle, railway car, cargo container, or any other
structure used for lodging of persons or for carrying on business therein, or
for the use, sale, or deposit of goods; each unit of a building consisting of
two or more units separately secured or occupied is a separate building.

RCW 9A.04.110(5)(emphasis added); see also State v. Lira, 45 Wn. App. 653,658,

726 P.2d 1015 (1986) (recognizing title-level "building" definition applies to

burglary statute under chapter 9A.52 RCW,as "'[t]o ignore a definition section is to

refuse to give legal effect to a part of the statutory law of the state'" (quoting State

V. Taylor, 30 Wn. App. 89, 95, 632 P.2d 892(1981))).

In 1979, the Court of Appeals identified a potential constitutional problem

posed by the overlapping definitions of "premises" and "building" as applied to

criminal trespass offenses. See State v. Martell, 22 Wn. App. 415, 591 P.2d 789

(1979). Martell was charged with second degree burglary for unlawfully entering a

church; the trial court instructed the jury on the lesser included offense offirst degree

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trespass but refused to instruct the jury on second degree trespass. Id. at 416-17.

After the jury convicted him offirst degree trespass, Martell appealed on the ground

that he was denied equal protection of the law. Id. The Court of Appeals agreed,

stating:

In viewing the two statutes pertaining to criminal trespass, it is evident
that each prescribes different punishment for the same act, namely entering
or remaining unlawfully in a building. While RCW 9A.52.080 uses the word
"premises" rather than "building," which term is used in RCW 9A.52.070(1),
these two statutes cannot be harmonized on the basis ofthat distinction. The
definitional statute (RCW 9A.52.010) which applies to the entire chapter,
includes "buildings" within the meaning of"premises" and precludes such a
construction.

Id. at 417-18.

In 1979, the legislature, in response to the equal protection problem outlined

in Martell, amended both the first degree and second degree criminal trespass

statutes. It deleted "or on real property adjacent thereto or upon real property which

is fenced or otherwise enclosed in a manner designed to exclude intruders" from first

degree criminal trespass, and also added a limiting provision to second degree

criminal trespass:"under circumstances not constituting criminal trespass in the first

degree." Laws of 1979, Ex. Sess., ch. 244, §§ 12, 13. The legislative bill report

stated.

The effect of adoption of the amendments contained in these two sections
would be to narrow the scope ofthe gross misdemeanor first degree criminal
trespass offense to trespasses in a building in its ordinary sense. The reason

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for the necessity of the odd appearing phrase "other than a fenced area" is
because ofthe definition of"building" in RCW 9A.04.110(5)which includes
fenced areas for purposes of using the term "building" elsewhere in the
criminal code, in particular in such areas as arson or burglary. Moreover, all
other types of trespasses other than in a building would be covered by the
second degree criminal trespass offense graded at the misdemeanor level.

H.B. Rep. on H.B. 307, at 5, 46th Leg., Reg. Sess.(Wash. 1979).

Though the bill report did not consider how the amendments would affect

interpretation of the term "building" in chapter 9A.52 RCW, subsequent Court of

Appeals decisions did. In State v. Mounsey, 31 Wn. App. 511, 518, 643 P.2d 892

(1982)and State v. Brittain, 38 Wn. App. 740,746,689 P.2d 1095 (1984), the court

rejected arguments that a jury should be instructed on second degree criminal

trespass as a lesser included offense of second degree burglary. Focusing on the

amended language in the second degree burglary statute limiting its reach to

"circumstances not constituting criminal trespass in the first degree," RCW

9A.52.080(1), the Court of Appeals interpreted the term "building" for purposes of

criminal trespass to mean only a building in its ordinary sense. The court therefore

held that second degree criminal trespass applies to "premises other than a building,

i.e., open grounds, yards, etc." Mounsey, 31 Wn. App. at 518; see also Brittain, 38

Wn. App. at 746 ("Second degree criminal trespass is applicable only in those

situations where the defendant allegedly enters or remains unlawfully on private

property not constituting a building, such as fenced land.").

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Following these cases, the Court of Appeals recognized in State v. Brown that

confusion remained in light of the overlapping definitions of "premises" and

"building." 50 Wn. App. 873, 751 P.2d 331 (1988), abrogated in part by In re Pers.

Restraint ofHeidari, 174 Wn.2d 288,274 P.3d 366(2012). The defendant mBrown

was charged with second degree burglary for entering a fenced area behind a tire

store, and ajury convicted him ofthe lesser included offense offirst degree trespass.

On appeal, he argued that a fenced area is not a "building" for purposes of the first

degree trespass statute notwithstanding the broad definition of "building" in ROW

9A.04.110. Id. at 875. The Court of Appeals agreed. Relying on the legislative

history noted above, the court determined that a fenced area does not fall within the

definition of"building" for first degree trespass because "building" under that statute

has only its ordinary meaning. Locations such as fenced areas "were intended to be

covered by the broader definition of 'premises' in the second degree criminal

trespass statute." Id. at 878. The court vacated Brown's first degree trespass

conviction and remanded with instructions to enter judgment for second degree

trespass. Id. at 879.

This approach to distinguishing first degree and second degree criminal

trespass has been incorporated into the pattern instructions often used by trial courts.

Relying on Brown, the Washington Pattern Instructions Committee recommends

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that courts not use the title-level "building" definition when instructing juries on first

degree trespass. See llA WASHINGTON PRACTICE: Washington Pattern Jury

Instructions: Criminal 60.16 note on use (4th ed. 2016)(WPIC). The WPIC

instructs:

Do not use WPIC 2.05 (Building—^Definition) with this instruction. If
criminal trespass is presented to the jury as a lesser included offense of
burglary, additional instructions may be needed to explain that there is a
separate definition of building for burglary and a separate definition of
building for criminal trespass.

Id. (citing Brown, 50 Wn. App. 873).^

The Court of Appeals in this case largely followed the analysis in Brown. See

Joseph, 195 Wn. App. at 743 ("[W]e conclude, as did Brown, that the legislature

intended the term 'building' in the first degree trespass statute to have its ordinary

meaning of a constructed edifice designed for occupancy.").^ The Court of Appeals

noted that the legislature had not taken further action to amend the statutes in

response to Brown, suggesting its agreement with that interpretation. See Joseph,

195 Wn. App. at 743("The nonadoption of a technical definition appears to indicate

^ WPIC 2.05 (Building—^Definition) is substantively identical to the title-level
building definition found in RCW 9A.04.110(5). 11 WPIC 2.05 (4th ed. 2016).
^ See, e.g., WEBSTER'S THIRD New International Dictionary 292 (2002)
(defining "building" as "a constructed edifice designed to stand more or less permanently,
covering a space of land, usu[ally] covered by a roof and more or less completely enclosed
by walls, and serving as a dwelling, storehouse, factory, shelter for animals, or other useful
structure — distinguished from structures not designed for occupancy (as fences or
monuments)").

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legislative satisfaction with use ofthe ordinary meaning ofthe term [building] in the

first degree trespass statute.").

The Court of Appeals recognized, however, that Joseph's case poses a

question unanswered by Brown: whether the title-level definition of"building" that

includes "any . . . vehicle" applies to define the scope of "premises" for second

degree trespass. RCW 9A.04.110(5); ROW 9A.52.010(3). Joseph maintains that

the definition of"premises" in RCW 9A.52.010(3) presents an exclusive list, which

does not include a motor vehicle. Just as the Court of Appeals in Brown rejected

application of the broad title-level definition of "building" to first degree criminal

trespass, he would have us reject a broad reading of that term for second degree

criminal trespass. See Pet. for Review at 7; Br. of Appellant at 10.

This reasoning, while supported by some degree of logical symmetry, fails to

account for the history ofthe amendments to the criminal trespass statutes. The 1979

amendments were designed to narrow first degree criminal trespass to avoid the

equal protection problem identified in Martell. It effectuates legislative intent to

read the term "building" in RCW 9A.52.070(1) without reference to the expansive,

title-level definition of"building" because "a different meaning plainly is required."

RCW 9A.04.110. But, the same cannot be said of second degree criminal trespass.

In context, it makes sense that first degree criminal trespass—^the more serious, gross

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misdemeanor—should be limited to "buildings" in the ordinary sense, while second

degree criminal trespass serves as a "catchall provision" for all other unauthorized

entries into locations contemplated under the trespass statutes. Joseph, 195 Wn.

App. at 743. The title-level definition of "building" thus aligns with the chapter-

level definition of "premises" to describe locations including ordinary buildings,

dwellings, or fenced land, as well as vehicles, railway cars, cargo containers,"or any

other structure used for [certain purposes]." RCW 9A.04.110(5). Any potential

overlap with first degree criminal trespass due to using the broad definition of

"building" is precluded by the amended language limiting second degree criminal

trespass to "circumstances not constituting criminal trespass in the first degree."

RCW 9A.52.080(1).

We conclude that the legislature plainly intended second degree criminal

trespass to encompass trespass into any "building" as defined in the criminal code,

RCW 9A.04.110(5), save for trespass into a building in its ordinary sense. This

interpretation properly restricts first degree trespass to unlawful entries into ordinary

"buildings," a descriptor that needs no further definition. The more severe charge

(a gross misdemeanor)is justified by the increased likelihood oftrespass into a home

or business. All other trespasses fall under the term "premises" and are treated as

simple misdemeanors. RCW 9A.52.080. This includes trespasses into premises that

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are "buildings" broadly conceived, but are not ordinarily thought ofas buildings—as

relevant here, vehicles. See RCW 9A.04.110(5) ("'Building,' in addition to its

ordinary meaning, includes any .. . vehicle.").'^

Under this interpretation, the trial court properly instructed the jury on second

degree criminal trespass as a lesser included offense of second degree vehicle

prowling. Because the evidence supports the jury's verdict, we affirm Joseph's

conviction.

^ Apart from arguing that Joseph trespassed in a "building" as defined in RCW
9A.04.110(5), the State suggests that the vehicle in which Joseph was sleeping also
qualifies as a "dwelling" because he was using it for "lodging" at the time of arrest. See
State's Suppl. Br. in Resp. to Pet. for Review at 2-3. While a dwelling falls within the
definition of "premises" for second degree trespass, we reject the notion that the Chevy
Blazer was a "dwelling." To accept the State's argument, we would have to conclude that
Joseph's conduct in finding a place to sleep tumed that place into a dwelling and thereby
made the conduct illegal. This would be ironic at best and, moreover, unfair.

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WE CONCUR:

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