IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 80173-2
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
CRYSTAL MONIZ,
Appellant.
LEACH, J. — Crystal Moniz appeals her conviction for residential burglary. She
claims the trial court should have instructed the jury on the lesser included offense of
second degree criminal trespass. She also challenges a judgment provision for interest
on non-restitution financial obligations. We affirm her conviction because any failure to
instruct the jury on second degree criminal trespass was harmless. The State concedes
the non-restitution financial obligations should not bear interest. So, we remand to correct
the judgment and sentence provision about interest.
BACKGROUND
On November 13, 2016, Crystal Moniz and her sister, Katie Moniz, were driving
from a casino when Daniel Bateman called to tell Katie he ran out of gas and needed
help. Bateman asked them to drive him to a friend’s house to get a gas can. When they
arrived at the house, Bateman asked Crystal to knock on the front door and get a gas
can. Crystal walked up to the house, rang the doorbell, and left when she received no
response. A short time later, Crystal returned to the house, rang the doorbell, knocked
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80173-2/2
on the door for about three minutes, and then went back to the car. Crystal then saw
Bateman exit the rear of the car with a mask on, jump the fence, and head to the rear of
the house. He left the front door of the house carrying items from inside the house, which
included jewelry, crosses, and rosaries. A security camera captured these events.
The Schumachers owned the burglarized house. Ms. Shumacher identified the
jewelry taken, and a ring pawned by Katie in the burglary.
William Jess Geoghagan, a detective sergeant with the Snohomish County
Sherriff’s Office approached Crystal at her home. She asked him if she was going to be
arrested. She identified herself as the person in the security camera video. Geoghagan
arrested Crystal. The State charged Crystal with one count of residential burglary.
At trial, Crystal requested instructions for the lesser included offenses of first and
second degree criminal trespass. The trial court denied the instruction for the lesser
included offense of second degree criminal trespass but allowed for the instruction on the
lesser included offense of first degree criminal trespass.
The jury found Crystal guilty of residential burglary. Crystal appeals.
ANALYSIS
Crystal claims the trial court should have instructed the jury on the lesser included
offense of second degree criminal trespass as she requested. A defendant is entitled to
a lesser included instruction if “(1) each element of the lesser offense is a necessary
element of the offense charged (legal prong), and (2) the evidence, viewed most favorably
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to the defendant, supports an inference that only the lesser crime was committed (factual
prong).”1
A lesser included offense instruction must be given if requested when the evidence
would allow the jury to find the defendant guilty of the lesser offense and acquit her of the
greater offense.2 However, “the evidence must affirmatively establish the defendant's
theory of the case – it is not enough that the jury might disbelieve the evidence pointing
to guilt.”3
To convict a person of residential burglary, the State must show the defendant
entered or remained unlawfully in a dwelling with the intent to commit a crime against a
person or property therein.4
To convict a person of second degree criminal trespass, the State must show the
defendant knowingly entered or remained unlawfully in or upon the premises of another
under circumstances not constituting criminal trespass in the first degree.5 A person is
guilty of first degree criminal trespass if the defendant knowingly enters or remains
unlawfully in a building.6
The State contends second degree trespass is not a lesser included offense of
residential burglary. We do not need to decide this issue. In the context of lesser included
offenses, this court has stated the omission of an instruction is a harmless error if “the
1
State v. Hahn, 174 Wn.2d 126, 129, 271 P.3d 892 (2012) (citing State v.
Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978)).
2
State v. Fernandez-Medina, 141 Wn.2d 448, 456, 6 P.3d 1150 (2000).
3
Fernandez-Medina, 141 Wn.2d at 456.
4
RCW 9A.52.025.
5
RCW 9A.52.080.
6
RCW 9A.52.070.
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factual question posed by the omitted instruction was necessarily resolved adversely to
the defendant under other, properly given instructions.”7
Crystal claims, viewed in the light most favorable to her, the jury could have found
she did not intend to commit, or participate in the commission of, any crime either time
she entered the Schumacher’s property. She denied having any knowledge of Bateman’s
intent to burglarize the Schumacher’s home. Here, the jury found Crystal committed
residential burglary beyond a reasonable doubt. And, the jury was instructed on first
degree criminal trespass, which included the same relevant elements as second degree
criminal trespass. This means the jury resolved the issue of whether Moniz intended to
commit a crime against the Schumacher’s property adversely to Moniz. So, giving the jury
an instruction for second degree residential burglary would not have changed the
outcome here. Any failure to give an instruction on second degree criminal trespass was
harmless.
Legal Financial Obligations
Crystal claims, and the State concedes, the judgment and sentence should be
amended to reflect the order for interest accrual relates only to the restitution imposed.
Because “no interest shall accrue on non-restitution legal financial obligations,”8 we
accept the State’s concession and remand to the trial court to amend the judgment and
sentence to include interest only on the restitution obligations.
7
State v. Hansen, 46 Wn. App. 292, 297, 730 P.2d 706 (1986), 737 P.2d 670
(1987).
8
RCW 10.82.090(1).
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CONCLUSION
We affirm in part and reverse in part. Crystal fails to show that an instruction for
second degree criminal trespass would have changed the outcome here. But, because
the trial court cannot order interest on non-restitution legal financial obligations, we
remand for the trial court to amend the judgment and sentence accordingly.
WE CONCUR:
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