Appeal from Superior Court of Snohomish County. Docket No: 93-1-01267-0. Date filed: 02/23/94. Judge signing: Hon. Kathryn E. Trumbull.
Authored by C. Kenneth Grosse. Concurring: William W. Baker, Ronald E. Cox. WE Concur
The opinion of the court was delivered by: Grosse
GROSSE, J. -- We reverse Kenneth Sweeney's conviction of second degree burglary because the trial court commented on the evidence by taking away a factual question for the jury when it implicitly instructed the jury that a fenced area was a building.
On July 31, 1993, the police responded to a call that the security alarm was tripped at Arrow Metal Corporation, a Woodinville scrap metal business. Climbing over Arrow Metal Corporation's fence, two police officers and tracking dog Jargo investigated the business's yard. Tracking Sweeney through the Arrow Metal Corporation yard, Jargo located Sweeney underneath a semi-trailer in a nearby lot. The officers also found a knife under the trailer. At Arrow Metal Corporation, the office trailer window door was broken and the screen cut. The cash drawer was open, but nothing was taken.
Located in an industrial area, Arrow Metal Corporation abuts a fenced lot containing a mobile office business and the mobile office business is next to a third fenced business lot containing construction vehicles. The police found Sweeney in the third lot. Sweeney told the police that he had been in the second lot containing the mobile office units.
Jacob Van De Rhoer is the general manager and part owner of Arrow Metal Corporation, a business that purchases and sells scrap metals. He described the physical layout of the business:
We're a total of approximately two acres. It's an old fenced-in lot.
We have a large shop building in which we process materials. There's a smaller building in which we house the office and administrative office and cashier's functions and personnel . . . .
According to him the purpose of the fence is "to keep unwanted visitors out during . . . closed hours." Although the business is accessible during business hours, after hours it is not: "The gate is closed and we put a chain through it and we padlock it." A sign informs the public of the business's open hours.
In order to sell scrap metal, such as aluminum cans, a customer "typically drives up to [the] scale attendant" who grades and weighs the metal and shows the customer where to drop it off. The alarm system is set on the administrative office, but is not set on the yard.
The court instructed the jury that it could convict Sweeney of second degree burglary if it found that Sweeney entered or remained in either the fenced area or the office trailer. The jury was instructed that it needed to unanimously decide on which of the two alternative ways to commit the crime was used but was not asked to define which of the two alternatives it based its verdict on. On February 15, 1994, the jury found Sweeney guilty of burglary in the second degree.
A person commits second degree burglary by entering or remaining unlawfully in a building with an intent to commit a crime against a person or property. *fn1 The definition of building includes "any . . . fenced area . . . used for . . . carrying on business therein, or for the use, sale or deposit of goods[.]" *fn2 The Supreme Court in State v. Roadhs refined the definition to also require the fence to be "erected mainly for the purpose of protecting property within its confines . . . ." *fn3 Thus a fence cannot be a "mere boundary fence or one erected for the sole purpose of aesthetic beautification." *fn4 The question of whether a fenced area is a building--including the question of the fence's primary purpose--is an issue for the trier of fact. *fn5
The court instructed the jury that it could convict Sweeney of second degree burglary if it found that Sweeney:
did enter or unlawfully remain (a) in a building, to-wit: the fenced area located at 6014 238th ...