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State v. Saltness

April 14, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
GREGORY N. SALTNESS, B.D. 7-08-80, APPELLANT. STATE OF WASHINGTON, RESPONDENT,
v.
RYAN CHRISTOPHER TOTTEN, B.D. 05-20-80, APPELLANT.



Appeal from Superior Court of King County. Docket No: 95-8-05571-2. Date filed: 12/19/95. Judge signing: Hon. Michael S. Spearman.

Petition for Review Denied October 7, 1997,

Authored by Allendoerfer, J.p.t.,* Visiting Judge. Concurring: Walter E. Webster, Mary K. Becker.

The opinion of the court was delivered by: Allendoerfer

ALLENDOERFER, J.P.T.* - Gregory Saltness and Ryan Totten were convicted of residential burglary and first degree malicious mischief for entering and extensively damaging a new home that had not yet been occupied. They challenge the sufficiency of the evidence proving that this structure was a dwelling, arguing that a structure cannot be a dwelling unless it has been occupied at some time in the past. Viewing the evidence in the light most favorable to the State, we hold that sufficient evidence existed that this structure was a dwelling and we affirm the convictions.

Saltness also appeals the court's imposition of restitution as his sole responsibility, arguing that the juvenile restitution statute requires that restitution "shall" be a joint and several responsibility if there are other participants in the crime. We agree, and therefore, reverse the imposition of restitution as his sole responsibility and remand for resentencing in light of this opinion.

This opinion has no precedential value and will be filed according to the rules of court. *fn1 Because this opinion will not be published and the facts of the case are known to the parties, we mention the facts only as necessary for an understanding of the opinion.

Residential Burglary -- Saltness and Totten

"A person is guilty of residential burglary if, with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle." *fn2 A dwelling is "any building or structure, though movable or temporary, or a portion thereof, which is used or ordinarily used by a person for lodging[.]" *fn3

Saltness and Totten argue that for a building to be a dwelling, the phrase "used or ordinarily used" means that it must have been occupied in the past. The State argues that the phrase "used or ordinarily used" unambiguously encompasses both past use and intended use. We agree with the State. When the language of a statute is unambiguous, we will not look beyond its words. *fn4

The definition of dwelling applies to structures used or ordinarily used for lodging. A lodging is "a place to live: DWELLING, HABITATION[,] . . . a place in which to settle or come to rest[,] . . . sleeping accommodations". *fn5 "Used" means "utilized according to its nature or purpose", and "ordinarily" means "in an ordinary manner: as . . . in the ordinary course of events [and] . . . to the usual extent". *fn6 Thus, the unambiguous meaning of dwelling includes both the past use and the ordinary or usual use, encompassing both actual and intended uses. *fn7

Here, the undisputed evidence indicated that this structure (1) was located on a lot in a residential cul-de-sac, (2) was new construction specifically designed solely for residential use (it included a kitchen, living room, bedrooms, bathrooms, and other residential amenities), (3) was connected to water and electricity service, (4) had appliances and light fixtures, (5) had been completed for four months, but was still unfurnished and vacant, and (6) had renters scheduled to move in within five days after the burglary. No dispute exists that the owners intended the house for human habitation and that they had not abandoned it.

Viewed in the light most favorable to the State, this evidence was sufficient for a rational trier of fact to have found that this structure was a dwelling under the "used or ordinarily used . . . for lodging" provision in the definition of dwelling. *fn8

Restitution Order -- Saltness *fn9

Saltness also challenges the trial court's imposition of $1,250 restitution as his sole responsibility. *fn10 It is undisputed that he ...


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