Appeal from Superior Court of King County. Docket No: 93-1-06175-3. Date filed: 08/15/94. Judge signing: Hon. Patricia H. Aitken.
Authored by Mary K. Becker. Concurring: Ann L. Ellington, Susan R. Agid.
The opinion of the court was delivered by: Becker
BECKER, J. -- In these consolidated cases, Joseph Daniels appeals his conviction for residential burglary by direct appeal and by a pro se personal restraint petition. Daniels' theory is that he was not alone at the burglary scene, and the only person who actually entered the dwelling was another, unapprehended person. We hold that the evidence at trial did not support this theory sufficiently to warrant a lesser-included offense instruction, and his post-trial affidavits, submitted in support of that theory, did not give rise to a likelihood that the trial result would have been different. For these and other reasons discussed below, we affirm the conviction and deny Daniels' personal restraint petition.
One evening a Capitol Hill resident heard glass breaking outside her home. Looking through the fence of her yard, she saw a man removing a stick from the broken glass of her neighbor's sliding glass door. The neighbor's yard was not well lit. She saw the man enter the broken door, then she went upstairs to tell her husband who immediately called 911.
After calling 911, she opened the blinds of her third-floor window and saw a man walking back and forth in the neighbor's apartment. He appeared to her to be the same person she had seen entering the apartment. She and her husband saw the man taking things out of the apartment. After the police arrived, she saw a man running in the street.
The police apprehended Daniels outside the apartment and arrested him.
A jury convicted him of residential burglary.
LESSER INCLUDED OFFENSE INSTRUCTION
At trial, Daniels proposed a criminal trespass instruction. On appeal, he assigns error to the trial court's refusal to instruct the jury on this lesser included offense.
A defendant is not entitled to an instruction on a lesser included crime unless the evidence presented supports an inference that the lesser crime was committed. State v. Workman, 90 Wash. 2d 443, 447-48, 584 P.2d 382 (1978). Daniels argues he is entitled to the instruction because there is evidence that two persons were involved, only one of whom entered the dwelling. In other words, he contends the jury could have found that he was a criminal trespasser but not a burglar.
Daniels interprets the testimony of the police officers as showing that two persons were at the scene. Officer Redmond testified that he alerted Officer Testerman to Daniels' presence by turning on his flashlight and shining it on Daniels. Redmond testified he did this because he was unable to radio Officer Testerman "to let him know there was another person in the back". (Emphasis added.) It is ambiguous from the record whether Officer Redmond meant another suspect in addition to the one who entered, or merely another person in addition to himself. This is insufficient evidence for an inference that a second person was present. And the same is true of some slight variations in the testimony of the officers and the next-door neighbor witnesses describing the appearance of the person they saw at the scene. Accordingly, the court properly refused to give the lesser included offense instruction.
In his restraint petition Daniels claims that the court's refusal to give the criminal trespass instruction violated various State and Federal constitutional rights. In view of the insufficiency of the evidence to support the instruction, none of the federal authorities cited by Daniels are on point.
SUFFICIENCY OF THE EVIDENCE
Daniels challenges the sufficiency of the evidence to establish the crime of residential burglary. Evidence is sufficient if any rational trier of fact could have found the essential elements beyond a reasonable doubt. State v. Green, 94 Wash. 2d 216, 221, 616 P.2d 628 (1980).
Daniels' argument is based on the same two-person theory he uses in his lesser-included instruction argument. First, he argues that the testimony of the neighbor indicates that the individual who entered fled down 14th Avenue when the police arrived. Second, he argues that the neighbors' descriptions of the person they saw does not match that of Daniels. Based on these two premises he makes a "mere presence" argument.
See State v. Wilson, 91 Wash. 2d 487, 492, 588 P.2d 1161 (1979) (holding that mere presence at the scene of the crime is not enough to establish participation).
Description discrepancies cited by Daniels are not so great that they necessarily lead to the Conclusion that another person must have been involved. First, although one witness said the suspect was wearing a dark-shirt, this is ambiguous because in the same statement she said he was wearing a light shirt. Second, the same witness described the suspect she saw as somewhat smaller than the arresting officer's description. But she was viewing the suspect from some distance and with less than full lighting. And the officer did not testify that his own description of Daniels in the police report was anything more than an ...