LAWRENCE-BERREY, A.C. J.
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
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.
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.
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.
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
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.
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.
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.
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.
COURT'S RESPONSE TO JURY QUESTIONS NOT MANIFEST ERROR
first argues the trial court violated his constitutional
right to a jury trial by improperly coercing the jury to
reach a verdict.
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 ...