Appeal from Superior Court of King County. Docket No: 95-1-04610-6. Date filed: 12/19/95. Judge signing: Hon. Patricia H. Aitken.
Petition for Review Denied July 8, 1997,
PER CURIAM. Earl J. Anderson appeals from a judgment and sentence entered following his conviction of two counts of residential burglary. He challenges the sufficiency of the evidence and contends the court erred in giving an inference of intent instruction, admitting evidence of a pretrial identification procedure, and finding the police had probable cause to arrest. We find no error and affirm.
At trial witnesses testified that on a warm summer afternoon Anderson entered two homes through open doors. Ronald Hemming, who was painting Gladys Bunch's house, testified Anderson approached the house, said he was a neighbor and asked to talk to the owner. Hemming told him the owner was home. Anderson stood at the front door for a time, then walked away.
Gladys Bunch testified she was sorting mail in her living room that day. She walked to her back door and discovered a man standing inside near her bedroom. She asked what he was doing in the house, and he replied he thought he might do some painting, claiming that he worked for "the painter." Thinking he meant Hemming, she asked him to go outside with her to talk to Hemming, who then confirmed that Anderson did not work for him. Hemming told her to call 911, and Anderson walked away down the street. Bunch testified she had lived in the neighborhood 37 years, did not know Anderson, and did not give him permission to enter her house.
A short time later and a half-mile away from Bunch's house, Anderson entered the home of Alice Flanagan. She testified she was in a loft above the living area of her home when she heard her dog's toenails scratching on the linoleum below. She looked over the edge of the loft into her living room and saw her dog "retreating" back under the loft and a man "turning to run out of the house." Nearby in the living area were two tables with trinkets, silver and crystal. She ran down the stairs to pursue the man, whose face she saw from the window. She ran out to the street and saw the man drive away in a car. She noted the car's license number and called police, giving them a description of the man, the car, and the license number.
Police received a radio description of the suspect: a black adult male, long dark hair combed back, with a white shirt and black pants. As to the second burglary, they received a similar description of the man, plus a vehicle description and license number. Approximately fifteen minutes later, officers located the parked vehicle. They observed Anderson walk out of the yard of a residence and get into the car. They stopped the car and ordered Anderson out of the car. His hair was combed back, and he was wearing a white shirt and dark pants.
Within one to two hours after the incidents, Hemming and Flanagan were transported by police to a location where Anderson was being held. He was in handcuffs, standing near a patrol car and police officers. Both Flanagan and Hemming identified him with certainty as the man they had seen earlier at the houses.
Anderson was charged with two counts of residential burglary. The court denied his motions challenging probable cause to arrest and admissibility of the pretrial identification. The trial court also gave the following instruction, WPIC 60.05:
A person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein. This inference is not binding upon you and it is for you to determine what weight, if any, such inference is to be given. The jury convicted Anderson as charged and he was sentenced to a standard range sentence.
Anderson first challenges the inference of intent instruction, contending there was no circumstantial evidence that he intended to commit a crime when he entered the residences. Consequently, he argues, the inference of intent was the sole proof of that element of burglary, and the State was relieved of its burden of proving the element beyond a reasonable doubt. This contention is without merit.
This instruction has been held to be a valid permissive inference. State v. Brunson, 128 Wash. 2d 98, 105-06, 905 P.2d 346 (1995). The inference of intent instruction does not violate due process when there is circumstantial evidence of intent and the inferred fact more likely than not flows from the proven facts. State v. Brunson, 128 Wash. 2d at 107.
With regard to the Bunch home, there was circumstantial evidence of Anderson's intent to commit a crime. The facts that he appeared to walk away, surreptitiously returned to enter, was found in the doorway of the bedroom, gave an implausible, or downright untruthful, explanation for his presence, and was unknown to Bunch constitute circumstantial evidence that he intended to commit a crime. See State v. Couch, 44 Wash. App. 26, 32, 720 ...