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State v. Dunleavy

Court of Appeals of Washington, Division 3

February 6, 2018

STATE OF WASHINGTON, Respondent,
v.
JAMES DAVID DUNLEAVY, Appellant.

          LAWRENCE-BERREY, A.C. J.

         James David Dunleavy appeals his convictions for second degree burglary and third degree theft. The convictions stem from Dunleavy, then an inmate at the Walla Walla County jail, going into another inmate's jail cell and taking his food. The central issue raised by Dunleavy is whether a jail cell is a separate building for purposes of RCW 9A.04.110(5). We hold that it is. We affirm Dunleavy's convictions, but remand for resentencing so the State can prove Dunleavy's offender score.

         FACTS

         Dunleavy was an inmate at the Walla Walla County jail in Unit E. In Unit E, there are eight cells capable of housing two inmates per cell. The cells open into a day room. In Unit E, the cell doors are open from about 6:00 a.m. until 9:00 p.m. An inmate is permitted to close his cell door, but if he does, the door will remain locked until opened the next morning.

         Dunleavy was hungry one day, so he asked inmate Kemp LaMunyon for a tortilla. LaMunyon responded that he did not have enough to share, but would buy more later and share with Dunleavy at that time. Dunleavy later bullied LaMunyon and threatened to "smash [him] out." Report of Proceedings (RP) at 5. Soon after, inmate John Owen attacked LaMunyon. During the attack, Dunleavy snuck into LaMunyon's jail cell and took some of LaMunyon's food.

         LaMunyon was seriously injured by Owen. Jail security investigated the fight and the theft, and concluded that the two were related. Security believed that Dunleavy staged the fight between Owen and LaMunyon to give him an opportunity to take LaMunyon's food. Because of the seriousness of LaMunyon's injuries, and because security concluded that the fight and the theft were related, the jail referred charges to the local prosecuting authority. The State charged Dunleavy with second degree burglary, third degree theft, and second degree assault.

         The State presented evidence of the jail's policies through Sergeant Anthony Robertson. Sergeant Robertson testified that new inmates are informed of the jail's policies when they are booked into jail. Inmates are informed, "first and foremost, they are not supposed to go into each other's cell." RP at 20. Sergeant Robertson explained that cells are assigned to inmates, and each inmate can expect privacy in their assigned space. Sergeant Robertson explained that inmates sometimes enter other inmates' cells without permission and if a separate crime occurs during the trespass, he will refer the matter for prosecution as a burglary.

         After the State presented its case, Dunleavy moved to dismiss the second degree burglary charge on the basis that an inmate's cell is a separate building for purposes of RCW 9A.04.110(5). The trial court considered the parties' arguments, denied Dunleavy's motion to dismiss, and the case continued forward.

         Dunleavy called one witness who testified that Dunleavy did not conspire with Owen to assault LaMunyon. After closing arguments, the case was submitted to the jury.

         The jury began deliberating at 1:30 p.m. At 4:00 p.m., the jury sent a written note to the trial court through the bailiff. The note asked, "Are the Walla Walla county jail policies legally binding? Are they considered law? What if we are not unanimous on a certain count?" Clerk's Papers (CP) at 5. The trial court, counsel, and Dunleavy discussed how the trial court should respond. The trial court's response read, "You are to review the evidence, the exhibits, and the instructions, and continue to deliberate in order to reach a verdict." CPat5. No party objected to this response. Less than one hour later, the jury returned a verdict finding Mr. Dunleavy guilty of second degree burglary and third degree theft but not guilty of second degree assault.

         At sentencing, Dunleavy wrote a letter to the court that his counsel read into the record. Through this letter, Dunleavy asked for a sentencing alternative rather than the State's sentencing recommendation of three to five years' confinement. The State represented that Dunleavy had an offender score of 9. The State did not offer any evidence of Dunleavy's prior convictions. Defense counsel did not contest the State's representation of Dunleavy's offender score. The trial court sentenced Dunleavy based on the State's representation that Dunleavy had an offender score of 9.

         Dunleavy timely appealed.

         ANALYSIS

         TRIAL COURT'S RESPONSE TO JURY QUESTIONS NOT MANIFEST ERROR

         Dunleavy first argues the trial court violated his constitutional right to a jury trial by improperly coercing the jury to reach a verdict.

         Dunleavy did not preserve this claim of error by objecting below to the trial court's response to the jury's questions. Nevertheless, RAP 2.5(a)(3) permits an appellate court to review an unpreserved claim of error if it involves a "manifest error affecting a constitutional right." Our RAP 2.5(a)(3) analysis involves a two-prong inquiry. First, the alleged error must truly be of constitutional magnitude. Stat ...


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