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Washington v. Howe

February 28, 1991

THE STATE OF WASHINGTON, PETITIONER,
v.
JOHN HOWE III, RESPONDENT. THE STATE OF WASHINGTON, RESPONDENT, V. MICHAEL JENSEN, PETITIONER. THE STATE OF WASHINGTON, PETITIONER, V. MICHAEL JAMES WALSH, RESPONDENT



En Banc. Utter, J. Dore, C.j., Brachtenbach, Dolliver, Andersen, Durham, Smith, and Guy, JJ., and Callow, J. Pro Tem., concur. Johnson, J., did not participate in the disposition of this case.

Author: Utter

The juvenile defendants in these three consolidated cases were each convicted of burglarizing their parents' homes. Each case raises the same central issue: When is a parental order to a juvenile to stay away from the parental home sufficient to establish the lack of privilege element of a burglary charge? We hold that a burglary conviction can only be sustained where the parent (1) expressly and unequivocally ordered the child out of the

parental home, and (2) provided some alternative means of assuring that the parents' statutory duty of care is met.

I

[1] Former RCW 9A.52.030(1) 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.

The State must prove both intent to commit a crime and unlawful entry in order to prove second degree burglary. State v. Steinbach, 101 Wash. 2d 460, 462, 679 P.2d 369 (1984). A person unlawfully enters a building when he is not then licensed, invited, or otherwise privileged to enter or remain. RCW 9A.52.010(3). If a person is privileged to enter the building, then he cannot be convicted of burglary. Steinbach, 101 Wash. 2d at 462. The juveniles in each of these cases assert that they were privileged to enter their parents' homes by virtue of their parents' obligation to provide for their dependent children.

[2] Parents have a statutory duty to provide for their dependent children. RCW 26.20.035(1)(a), (b) provides:

(1) Any person who is able to provide support, or has the ability to earn the means to provide support, and who:

(a) Wilfully omits to provide necessary food, clothing, shelter, or medical attendance to a child dependent upon him or her . . .

(b) . . . is guilty of the crime of family nonsupport.

The duty of the parent to provide for the child results in the child having a privilege to enter the family home. Therefore, the State can only prove burglary if the child's privilege to enter the home has been revoked.

This holding is supported by our decision in State v. Steinbach, supra. In Steinbach, a juvenile petitioned the court for alternative residential placement (hereinafter ARP) under the provisions of RCW 13.32A. Approximately 2 weeks after the court entered the ARP order, the juvenile entered her mother's home without permission and

removed several items. The trial court found that the juvenile entered the home with the intent to commit a crime and entered a judgment convicting her of second degree burglary. This court overturned the conviction. We held that the juvenile's entry into her mother's home was privileged, and therefore could not be unlawful. 101 Wash. 2d at 462. In so holding, we noted that the ARP did not revoke the juvenile's privilege to enter the parental home unless it contained a specific provision doing so. 101 Wash. 2d at 463. We declined, however, to decide whether a conviction for burglary is appropriate where either the ARP or the parent expressly prohibits the child from returning home. 101 Wash. 2d at 464 n.1. That is the question before us in these consolidated cases.

The focal issue here is whether a parent can revoke the child's privilege to enter the parental home, and under what ...


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