STATE v. MOI, 154 Wn. App. 1055 (2010)

Nos. 62437-7-I, 62438-5-I.The Court of Appeals of Washington, Division One.
March 8, 2010.

Appeals from a judgment of the Superior Court for King County, No. 07-1-05415-1, Gregory P. Canova, J., entered August 25, 2008.

Affirmed by unpublished opinion per Schindler, C.J., concurred in by Grosse and Cox, JJ.

SCHINDLER, C.J.

The State charged Michael and Kellie Moi with burglary in the second degree of a decommissioned Seattle City Light electricity substation. A jury convicted Michael and Kellie of the lesser included charge of criminal trespass in the second degree.[1] For the first time on appeal, Michael and Kellie contend that because the evidence and the instructions of law allowed the jury to convict on the uncharged crime of trespassing on private property to reach the substation, their due process rights were violated. Kellie further argues that the trial court erred in failing to give a unanimity instruction, and that the court’s refusal to give an instruction on the defense of abandonment violated her right to equal protection. Kellie also claims her counsel was ineffective in failing to request a jury instruction that she reasonably believed Seattle City Light would have given her permission to enter and remain at the substation. Finding no error, we affirm.

FACTS
On March 20, 2007, Frank Zellerhoff, a developer and general contractor, and his employee Matthew Matthews, were preparing to demolish three houses on Zellerhoff’s property in Ballard. The northern edge of Zellerhoff’s property abuts the southern edge of a decommissioned electricity substation owned by Seattle City Light. The electricity substation is surrounded by an eight-foot high chain-link fence. The front gate to the substation is locked, but there was an approximately eight-foot hole in the section of the chain-link fence near Zellerhoff’s property. While the hole in the fence was obscured from view from Zellerhoff’s property, it was visible from the locked front gate of the substation. There is a “Seattle City Light” sign at the front gate of the substation and another sign indicating that the driveway in front of the locked front gate is a tow-away area.

Prior to beginning demolition, Matthews carried a baseball bat as he checked inside each of the three houses to make sure no one was inside. When Matthews came out of the last house, he saw Michael and Kellie Moi with a small drill and a bag. According to Matthews, Michael made a comment about the baseball bat, and asked Matthews if he was “out beating people.” Matthews said that he responded with a “smart aleck” remark, “[n]o, just trespassers.” According to Michael, he told Matthews that he and Kellie were “not trespassing,” but just crossing through the property. Matthews did not voice any objection to the Mois’ crossing Zellerhoff’s property, but warned them to stay away from the three houses that were about to be demolished. Michael said that he expressly asked Matthews if they could cross the Zellerhoff property. In any event, under both versions of the encounter, the Mois indicated they were crossing Zellerhoff’s property and Matthews did not object. After crossing Zellerhoff’s property, Michael and Kellie entered the substation through the hole in the fence.

Later, after Zellerhoff and Matthews finished tearing down a shed at the edge of the property, they could see Michael and Kellie doing something with tools at the substation. Zellerhoff assumed Michael and Kellie were stealing property and shouted out to them that they “needed to get out of there.” After Michael and Kellie ignored Zellerhoff, he told them he was going to call the police. Michael and Kellie then packed up their tools and walked back across Zellerhoff’s property to get to their van. Matthews followed them and wrote down the license plate number of the van. The police arrested Michael and Kellie a few blocks away. In a search incident to arrest, the police found a small bag of nuts and bolts in the van.

Michael admitted to the police that he did not have permission to enter the substation. After being advised of hisMiranda[2] rights, Michael said that he believed that Seattle City Light had no interest in the abandoned substation, and he was performing a community service by collecting recyclable materials. Michael said he planned to sell any material that could be salvaged.

The State charged Michael and Kellie with burglary in the second degree. The information alleged that Michael and Kellie entered “a building,” specifically, the Ballard substation, with the intent to commit a crime.

At trial, Zellerhoff, Matthews, the arresting officers, and two Seattle City Light employees testified on behalf of the State. The Seattle City Light employees testified that a decommissioned electricity substation is not abandoned property because it may be used for another purpose or sold. One of the City Light employees testified that while the City sometimes solicits bids to remove recyclable materials from decommissioned sites, it had not done so for the Ballard substation. The employee also testified that when the City solicits such bids, a Seattle City Light employee must accompany each prospective bidder to the site because of the dangerous conditions that exist at the substations.

Michael and Kellie testified that they went to the substation to investigate so they could determine whether they should submit a bid to salvage materials at the site. Michael said they brought tools to look inside the substation panels.

Michael and Kellie each requested that the court give jury instructions on lesser included crimes. Michael proposed an instruction on the lesser included crime of criminal trespass in the second degree. Kellie proposed an instruction on the lesser included crime of criminal trespass in the first degree. Kellie also requested an instruction on the defense of abandonment. The court ruled that as a matter of law, criminal trespass in the second degree was the lesser included offense of the charged crime of burglary in the second degree of the fenced substation. The trial court declined to give Kellie’s proposed jury instruction on the defense of abandonment. The court ruled that the statutory abandonment defense only applies to criminal trespass in the first degree.

The jury acquitted Michael and Kellie on the charge of burglary in the second degree, but convicted Michael and Kellie of the lesser included offense of criminal trespass in the second degree. The court imposed a suspended 32-day sentence with credit for time served, and the remaining 30 days converted to community service. Michael and Kellie appeal. We consolidated the appeals.

ANALYSISUncharged Crime

For the first time on appeal, Michael and Kellie argue that because the evidence and the jury instructions permitted the jury to convict on the uncharged crime of trespassing on Zellerhoff’s property, their constitutional right to due process was violated.[3] Relying on the evidence that they crossed Zellerhoff’s property to reach the substation and the wording of the jury instructions, Michael and Kellie argue that the jury could have convicted on the uncharged crime of criminal trespass of Zellerhoff’s property.

A criminal defendant must be given notice of all charged crimes. State v. Schaffer, 120 Wn.2d 616, 619, 845 P.2d 281 (1993). It is “axiomatic” under both the federal and state constitution that “due process does not permit one to be tried, convicted or sentenced for a crime with which he has not been charged or about which he has not been properly notified.”[4] Von Atkinson v. Smith, 575 F.2d 819, 821(10 th Cir. 1978); State v. Irizarry, 111 Wn.2d 591, 592, 763 P.2d 432 (1988). When an information alleges only one crime, it is constitutional error to instruct the jury on a different, uncharged crime. State v. Doogan, 82 Wn. App. 185, 188, 917 P.2d 155 (1996) (jury erroneously instructed on uncharged statutory alternative means). Instructing the jury on an uncharged crime may constitute reversible error where it is possible that the jury convicted the defendant on that crime.Doogan, 82 Wn. App. at 189.

The State charged Michael and Kellie with burglary in the second degree of the Ballard substation. The court informed the jury that the information alleged Michael and Kellie “did enter and remain unlawfully in a building, located at a substation located at the 1400 block of NW 65th Street, in [King County, Washington], with intent to commit a crime against a person or property therein.”

The “to-convict” instruction for the charged crime of burglary in the second degree required the State to prove beyond a reasonable doubt that each defendant “entered or remained unlawfully in a building other than a dwelling.”[5] The jury instructions defined a building, as including a “fenced area.”

There is no dispute that criminal trespass in the second degree is a lesser included crime of the charged crime of burglary in the second degree.[6] With respect to consideration of the lesser included crime of criminal trespass in the second degree, the court instructed the jury as follows:

Each defendant is charged with Burglary in the Second Degree. If, after full and careful deliberation on this charge, you are not satisfied beyond a reasonable doubt that either or both defendants are guilty, then you will consider whether either or both defendants are guilty of the lesser included crime of Criminal Trespass in the Second Degree.
When a crime has been proved against a person, and there exists a reasonable doubt as to which of two or more crimes that person is guilty, he or she shall be convicted only of the lowest crime.

The “to-convict” instruction for the lesser included offense of criminal trespass in the second degree required the State to prove beyond a reasonable doubt that each defendant “knowingly entered or remained in or upon the premises of another” and that each defendant “knew that the entry or remaining was unlawful.” The court instructed the jury to “consider the instructions as a whole.”

We review the adequacy of the jury instructions de novo “in the context of the instructions as a whole.” State v.DeRyke, 149 Wn.2d 906, 910, 73 P.3d 1000 (2003); Statev. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995). Jury instructions meet the requirements of a fair trial, “if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law.” State v.Clausing, 147 Wn.2d 620, 626, 56 P.3d 550 (2002); Juries are presumed to follow the court’s instructions. State v.Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994).

Michael and Kellie argue the jury instructions permitted the jury to convict on the uncharged crime of criminal trespass in the second degree of Zellerhoff’s property because the lesser included criminal trespass jury instruction only referred to “premises,” and did not specify the Ballard substation or a “fenced area.”

But as the instructions make clear, consideration of the lesser included crime of criminal trespass in the second degree is not a separate charge. The crime of criminal trespass in the second degree is a lesser included crime of the charged crime of burglary in the second degree of a fenced area. Because the burglary charge was expressly limited to the Ballard substation, the lesser included criminal trespass instruction was likewise limited to the substation. See RCW 10.61.006 (“the defendant may be found guilty of an offense the commission of which is necessarily included within that with which he is charged in the indictment or information.”).

Moreover, contrary to the argument on appeal, the State in closing argument did not rely on the fact that Michael and Kellie crossed over the Zellerhoff property as a basis to argue that Michael and Kellie “entered or remained unlawfully.” While the prosecutor commented on the discrepancy between Michael’s testimony and Matthews’ testimony about their encounter, and whether Michael specifically asked for permission to cross the Zellerhoff property, Michael and Kellie ignore the context of the prosecutor’s comments.

The prosecutor pointed out the discrepancy in the testimony between Michael and Matthews in recounting the events leading up to the charged crime of burglary in the second degree of the Ballard substation. The prosecutor asserted there was no dispute that despite the hole in the fence, the substation was fully enclosed by a fence, and that Michael and Kellie did not have permission to enter the substation. The prosecutor argued that Michael and Kellie knew they were unlawfully entering the substation, despite the fact that the substation was not in use by the City, there were no “no trespassing” signs, and there was a sizable hole in the fence.

Likewise, the defense closing arguments only addressed the charged crime of burglary in the second degree and the lesser included crime of criminal trespass as to the substation. Michael’s attorney argued that the substation was not really a fenced area since there was a hole “that you could drive a forklift truck through.” Michael’s attorney also argued that although the Seattle City Light witnesses testified that the substation was not abandoned, it was, in fact, abandoned. The attorney further asserted that because Michael’s and Kellie’s conduct was not covert, the State’s assertion that they knew they weren’t allowed to enter the substation premises and intended to steal property, was unpersuasive.

In closing argument, Kellie’s attorney focused on the lesser included crime of criminal trespass in the second degree and whether Michael and Kellie knew they were unlawfully entering the substation. Kellie’s attorney also argued that because of Michael’s superior business knowledge and his knowledge about salvaging, Kellie relied on Michael’s representation that they did not need to obtain permission to enter the substation and she did not believe they were trespassing. Kellie’s attorney further argued that it was reasonable for Michael and Kellie to believe that they could lawfully enter the substation, because it appeared to be abandoned and the premises were not secure.

The cases Michael and Kellie rely on to argue due process was violated, Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 92 L.Ed. 644 (1948), State v. Olds, 39 Wn.2d 258, 260-61, 235 P.2d 165 (1951), and Stirone v. United States, 361 U.S. 212, 218-19, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), are not analogous.

In Stirone, the Supreme Court held that the defendant was convicted of a charged crime that was not included in the indictment. The indictment only charged the defendant with interference with sand shipments. But the jury instructions stated that the jury could also find the defendant guilty on interference with steel shipments. Stirone, 361 U.S. at 217.

In Cole, the Arkansas State Supreme Court relied on section one of a statute in affirming the defendants’ convictions. Cole, 333 U.S. at 200. Because the language in the information mirrored section two of the statute, the Supreme Court held that the charging document did not adequately notify the defendants of the charge under section one. Cole, 333 U.S. at 200-201.

As in Cole, the Washington Supreme Court inOlds held that instructing the jury on a subsection of a statute that the defendant was not charged with violating, required reversal. Olds, 39 Wn.2d at 260-61.

Here, the information unquestionably notified Michael and Kellie of the charge of burglary in the second degree based on the unlawful entry of the Seattle City Light Ballard substation. The jury instructions on the lesser included crime of criminal trespass also clearly informed the jury that the crime of criminal trespass in the second degree was a lesser included offense of the charged crime of burglary in the second degree of the substation. Based on the information, the evidence at trial, and the jury instructions, we conclude there is no reasonable possibility that Michael and Kellie were convicted of the uncharged crime of criminal trespass in the second degree of Zellerhoff’s property.

Unanimity Instruction

In a similar vein, Kellie asserts that based on the evidence that they crossed over Zellerhoff’s property, the court erred in failing to give a unanimity instruction.[7] A jury must unanimously agree on the act that supports a conviction.State v. Petrich, 101 Wn.2d 566, 569, 683 P.2d 173
(1984); State v. Kitchen, 110 Wn.2d 403, 411, 756 P.2d 105 (1988). Where multiple acts could constitute the crime charged, the State must either elect which particular criminal act it will rely on for conviction, or the trial court must give a unanimity, or a Petrich instruction, informing the jury that it must agree on the same underlying criminal act.State v. Vander Houwen, 163 Wn.2d 25, 38, 177 P.3d 93
(2008). But if the evidence establishes only one violation,Petrich instruction is not required. State v.Hansonm, 59 Wn. App. 651, 657, 800 P.2d 1124 (1990). A general verdict will necessarily reflect unanimous agreement if only one violation occurred. Hanson, 59 Wn. App. at 657.

As explained, the State charged Michael and Kellie with the crime of burglary in the second degree of the Ballard substation. Because the jury instructions clearly state that criminal trespass in the second degree is a lesser included offense of the charged crime, no Petrich instruction was required.

The evidence also does not establish that Michael and Kellie committed criminal trespass in the second degree of Zellerhoff’s prperty. The uncontroverted evidence showed that Michael and Kellie encountered Matthews while walking across Zellerhoff’s property to get to the substation.

Even assuming Michael did not affirmatively ask for permission to cross Zellerhoff’s property, Matthews acquiesced and permitted Michael and Kellie to do so. When asked if he knew where Michael and Kellie were going, Matthews testified — “I didn’t care . . . I just said, [j]ust don’t be in the house . . . or be around when . . . everything is coming down. . . .” Matthews said his only concern was that no one would be hurt in the demolition. Matthews testified that he also told Zellerhoff that a couple had crossed through the property, but he had made sure they were not near the buildings. Matthews said that neither he nor Zellerhoff “thought anything of it.”

Equal Protection

Kellie also contends that the court’s refusal to give her proposed instruction on the defense of abandonment denied her equal protection of the law.

Abandonment is a statutory defense to the crime of criminal trespass in the first degree. Under RCW 9A.52.070, the crime of criminal trespass in the first degree proscribes unlawful entry of a building, but does not encompass a fenced area. RCW 9A.52.090 provides that it is a defense to criminal trespass in the first degree if: “(1) A building involved in an offense under RCW 9A.52.070 [first degree criminal trespass] was abandoned.”[8]

Kellie contends there is no rational basis for allowing an abandonment defense to criminal trespass in the first degree by unlawfully entering or remaining in a building, while disallowing that defense for criminal trespass in the second degree for unlawfully entering a “fenced area.”

The Washington and federal constitutions guarantee equal treatment under the law. U.S. Const. amend. XIV, § 1; Wash. Const. art. I, § 12.[9] To establish a violation of equal protection, a party must show that the law treats two similarly situated classes of individuals unequally. Fell v. SpokaneTransit Auth., 128 Wn. 2d 618, 635, 911 P.2d 1319 (1996).

Because equal protection only protects against unjust discrimination between similarly situated individuals, before the court will engage in an equal protection analysis, a defendant must first establish that he or she is similarly situated with other persons in the class. State v.Osman, 157 Wn.2d 474, 484, 139 P.3d 334 (2006); Statev. Handley, 115 Wn.2d 275, 289, 796 P.2d 1266 (1990). Because Kellie is not similarly situated to those charged with the crime of criminal trespass in the first degree based on unlawful entry of a building, her equal protection claim fails.

Ineffective Assistance of Counsel

Kellie contends her counsel was ineffective in failing to request a jury instruction stating that it is a defense to criminal trespass in the second degree if “[t]he actor reasonably believed that the owner of the premises, or other person empowered to license access thereto, would have licensed him to enter or remain.” RCW 9A.52.090(3).

To prove ineffective assistance of counsel, a defendant must show counsel’s performance was deficient and prejudice.State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816
(1987). Counsel’s performance is deficient if it falls below an objective standard of reasonableness. State v.Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). There is a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). “Legitimate trial strategy cannot serve as the basis for a claim of ineffective assistance of counsel.” Inre Pers. Restraint of Hubert, 138 Wn. App. 924, 928, 158 P.3d 1282 (2007).

Here, the proposed instruction would have been inconsistent with Michael’s and Kellie’s testimony and with Kellie’s theory at trial. Kellie’s theory at trial was that she was an “unwitting” trespasser and she had a basis to rely on Michael’s superior knowledge and experience. Michael and Kellie both testified that before they went to the substation, Kellie asked whether they should first call Seattle City Light. Michael told Kellie he had tried calling before and was not able to get through, and that it was not necessary since they were only going to look at the property. Kellie said she relied on Michael’s assurances that they did not need to notify or obtain permission from Seattle City Light.

Kellie also argued that the substation appeared to be abandoned and there were no posted signs or other indication that caused her to question Michael’s assurances.[10] On this record, Kellie cannot establish that her attorney’s strategic decision to not request a jury instruction on a defense that was inconsistent with the evidence and her theory at trial was deficient.

We affirm.

WE CONCUR: