STATE v. YOUNG, 124 Wn. App. 1043 (2004)

No. 30701-4-II, Consolidated with 30711-1-IIThe Court of Appeals of Washington, Division Two.
Filed: December 21, 2004 UNPUBLISHED OPINION

Appeal from Superior Court of Clark County. Docket No: 03-1-00374-3. Judgment or order under review. Date filed: 07/16/2003. Judge signing: Hon. Robert L Harris.

Counsel for Appellant(s), Lisa Elizabeth Tabbut, Attorney at Law, 1402 Broadway St, Longview, WA 98632-3714.

Counsel for Respondent(s), Philip A. Meyers, Attorney at Law, PO Box 5000, Vancouver, WA 98666-5000.

QUINN-BRINTNALL, C.J.

Anthony Young appeals his conviction for attempted residential burglary. Young contends that his trial counsel was constitutionally ineffective for not excepting to a jury instruction which permitted the jury to infer intent to commit a crime from the unlawful entering of a building. Because the instruction was appropriately given, Young has failed to show that his counsel was ineffective. Thus, we affirm.

FACTS
In the early morning of February 18, 2003, Clinton Montgomery was awoken by an argument outside of his third-floor apartment. Montgomery heard a woman yell from her balcony, `[s]he’s not here’ and `[y]ou better leave,’ to Young, who was standing at the locked entrance to the apartment building. VII Report of Proceedings (RP) at 95-96. Montgomery then heard Young enter the building, use the stairwell, and then enter the third floor. At this point, Montgomery heard Young kicking and pounding on Montgomery’s apartment door. Although Montgomery and a friend attempted to brace the door, Young eventually `busted [it] open’ and broke apart the entire door frame. VII RP at 100. As this was occurring, Montgomery had visual contact with Young and could hear him uttering repeatedly, `I know she’s in there.’ VII RP at 101. After taking a `step or two’ into the apartment, Montgomery and his friend thrust themselves against the broken door and frame, forcing Young out of the apartment. VII RP at 101. At this point, Young ran down the stairs and out of the building. He returned to Montgomery’s door and began pounding on it when Montgomery yelled at him through the window. Shortly thereafter, the police arrived and took Young into custody.

The State charged Young with residential burglary, attempted residential burglary, and third degree malicious mischief. The residential burglary charge stemmed from Young’s entering of the apartment complex, while the attempted residential burglary and malicious mischief counts stemmed from the incident involving Montgomery. After a one-day trial, the jury hung on the residential burglary charge but found Young guilty of attempted residential burglary and third degree malicious mischief. This appeal followed.

ANALYSIS
In this appeal, Young challenges the permissive inference jury instruction. Because Young’s trial counsel did not take exception to the instruction, Young presents the issue through a claim that he received ineffective assistance of counsel. Thus, Young must show that his counsel’s deficient performance prejudiced him. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). In order to meet this burden, Young must first demonstrate that the challenged instruction was improperly given.

In charging Young with attempted residential burglary, the State was required to prove that Young intended to commit residential burglary and that he took a substantial step toward committing the crime. RCW 9A.28.020(1). A person commits residential burglary when he enters or remains unlawfully in a dwelling with the intent to commit a crime in that dwelling. RCW 9A.52.025(1). Accordingly, the jury was instructed as follows:

A person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein. This inference is not binding upon you and it is for you to determine what weight, if any, such inference is to be given. Clerk’s Papers at 31; 11A Washington Pattern Jury Instructions: Criminal 60.05, at 9 (Supp. 1998) (WPIC); RCW 9A.52.040.[1]
Both WPIC 60.05 and RCW 9A.52.040 allow juries in burglary prosecutions to infer that a defendant intended to commit a crime on the premises when he unlawfully entered or remained in a building. The legislature has broadly defined an entry in this context to include `the insertion of any part of [a person’s] body’ into a building. RCW 9A.52.010(2); see also State v. Bassett, 50 Wn. App. 23, 26-27, 746 P.2d 1240 (1987) (insertion of finger through window constitutes entry), review denied, 110 Wn.2d 1016
(1988).

A permissive inference instruction of this nature is appropriate in a burglary case and also in a prosecution for attempted burglary where the evidence shows that the defendant illegally entered the building. State v. Jackson, 112 Wn.2d 867, 876, 774 P.2d 1211 (1989); State v. Berglund, 65 Wn. App. 648, 652-53, 829 P.2d 247, review denied, 119 Wn.2d 1021 (1992). But such an instruction is improper if the most that is shown is equivocal conduct: `An inference [of intent to commit a crime in a building] should not arise where there exist other reasonable conclusions that would follow from the circumstances.’ Jackson, 112 Wn.2d at 876.

In Jackson, the defendant was seen repeatedly kicking the plastic window area of the front door of a store. The defendant quickly walked away when he saw the officer. Our Supreme Court concluded that giving the inference instruction was error both because there was no evidence of actual entry and because `an inference cannot follow that there was intent to commit a crime within the building just by the defendants’ [sic] shattering of the window in the door. This evidence is consistent with two different interpretations; one indicating attempted burglary, a felony; and the other malicious mischief, a misdemeanor.’ Jackson, 112 Wn.2d at 876.

In Berglund, Division One upheld the use of an inference instruction in an attempted burglary case. There, the defendant left fingerprints on the inside of the exterior pane of a double-paned window, showing that he had continued to try to widen the opening even after first breaking the window with a rock. Division One concluded that while breaking the window could have shown only vandalism, the fingerprint evidence showed that the defendant had entered the building with his hands and tried to create a larger opening by breaking away or attempting to break away more window glass. Such evidence was `reasonably consistent only with an attempt to get into the building.’ Berglund, 65 Wn. App. at 653.

Here Young’s actions gained him access to Montgomery’s apartment. Young manifested his intention to enter the apartment and took a `step or two’ inside. VII RP at 101. Had it not been for Montgomery’s pushing Young out, Young would have made his way into the main area of the apartment. Young’s unlawful entry into Montgomery’s apartment was neither ambiguous nor accidental.

In addition to showing entry and unequivocal conduct, recent case law suggests a third layer of analysis anytime a permissive inference instruction is given. `[W]hen permissive inferences are only part of the State’s proof supporting an element and not the `sole and sufficient’ proof of such element, due process is not offended if the prosecution shows that the inference more likely than not flows from the proven fact.’ State v. Deal, 128 Wn.2d 693, 700, 911 P.2d 996 (1996) (quoting State v. Brunson, 128 Wn.2d 98, 107, 905 P.2d 346 (1995)). But when the inference described in the instruction is the only basis for finding an element of the crime charged, due process requires that the inference flow beyond a reasonable doubt from the proved fact. State v. Hanna, 123 Wn.2d 704, 711, 871 P.2d 135, cert. denied, 513 U.S. 919 (1994); State v. Farr-Lenzini, 93 Wn. App. 453, 469
n. 7, 970 P.2d 313 (1999).

The question is whether Young’s entry into the apartment was the only evidence offered to prove an intent to commit a crime inside. Additional evidence might include a surreptitious entry, the wearing of burglary-like apparel, possession of burglary tools, or an attempt to flee. State v. Bencivenga, 137 Wn.2d 703, 709-10, 974 P.2d 832 (1999); State v. Bergeron, 105 Wn.2d 1, 11-12, 711 P.2d 1000 (1985). Montgomery testified that after Young was pushed out of the apartment, Young attempted to flee the building but he returned to the apartment after Montgomery began taunting him. Young’s attempt to reenter the apartment after he knew he was not welcome and after he had been provoked is additional evidence of Young’s intent to commit a crime inside Montgomery’s apartment.

The State’s proof of intent did not rest solely on Young’s illegal entry and the permissive inference instruction. Other evidence suggested Young’s intent to commit a crime in Montgomery’s apartment. Young’s unlawful entry was not equivocal: he forcibly entered an apartment after he had broken the door, and he did so with the knowledge that he was not welcome. An inference that Young intended to commit a crime inside the apartment flowed from his unlawful entry. The permissive inference instruction was proper and Young’s trial counsel was not deficient in not excepting to it.

Affirmed.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

HOUGHTON, J. and BRIDGEWATER, J., concur.