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State v. McPherson

Court of Appeals of Washington, Division 2

February 24, 2015

The State of Washington, Respondent,
v.
Justin Dewayne McPherson, Appellant

Appeal from Lewis County Superior Court. Docket No: 13-1-00216-1. Judge signing: Honorable Nelson E Hunt. Judgment or order under review. Date filed: 06/26/2013.

Jodi R. Backlund, Skylar T. Brett, and Manek R. Mistry (of Backlund & Mistry ), for appellant.

Jonathan L. Meyer, Prosecuting Attorney, and J. Bradley Meagher, Deputy, for respondent.

Authored by Lisa Sutton. Concurring: Bradley A. Maxa, Jill M Johanson.

OPINION

[186 Wn.App. 115] Sutton, J.

ΒΆ 1 Justin Dewayne McPherson appeals his jury trial convictions for second degree burglary, residential burglary, and second degree malicious mischief. He argues that (1) the evidence was insufficient to support the residential burglary conviction because there was no proof that the premises he entered, a jewelry store with an attached apartment, was a " dwelling" and (2) the accomplice liability statute is overbroad because it criminalizes

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constitutionally protected speech. We hold that under the facts of this case, the question of whether the jewelry store and attached apartment was a " dwelling" is a question of fact for the jury [186 Wn.App. 116] and the evidence supports the jury's verdict on this element. We also follow our previous rejection of McPherson's accomplice liability statute argument. Accordingly, we affirm.

FACTS

¶ 2 On the morning of March 20, 2013, someone broke into Frederick William Salewsky's jewelry store in Centralia by entering the unoccupied store next door and making a hole in the adjoining wall.[1] Frederick's son Jeremy Salewsky,[2] who worked in the jewelry store and lived in an apartment above the store, was awoken by a noise, went downstairs to investigate, and interrupted the burglary. Jeremy fired a shot toward a person he saw in the store and then saw that person flee through the hole in the wall, but he was unsure if he had shot anyone. Jeremy did not see the intruder's face. The police later identified McPherson as a suspect after he checked into a Tacoma hospital with a gunshot wound.

¶ 3 The State charged McPherson with second degree burglary of the vacant store (count I), residential burglary of the jewelry store and attached apartment with a special allegation that the victim of the burglary was present at the time of the crime (count II), and second degree malicious mischief (count III). At trial, Jeremy testified that he lived in the apartment above the jewelry store, that the only way to access the apartment was by the stairs located inside the store, and that the apartment was separated from the store by a " swinging door" at the bottom of the stairway and a [186 Wn.App. 117] door at the top of the stairs that did not lock or shut securely.[3] 1 Report of Proceedings (RP) at 23-24.

¶ 4 Although the State did not specifically charge McPherson as an accomplice, the trial court instructed the jury on accomplice liability using an instruction identical to Washington Pattern Jury Instruction 10.51. 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 10.51, at 217 (3d ed. 2008).

¶ 5 The jury found McPherson guilty as charged and found that he had committed the residential burglary while the victim was present in the building or residence. ...


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