                                                                     FILED
                                                               COURT OF APPEALS
                                                                   DIVISION 11

                                                              2015 MAY - 5   AM 9: 25
                                                              STATE OF WASHINGTON

                                                              BY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


                                       DIVISION II


 STATE OF WASHINGTON,                                              No. 44133 -1 - II


                               Respondent,                  UNPUBLISHED OPINION


        v.




 KENNETH COUNT BERGMAN,


                               Appellant.


       BJORGEN, A.C. J. —   A jury convicted Kenneth Count Bergman of second degree burglary

based on his attempt to remove metal from the grounds of a metal recycler. Bergman appeals,


challenging the sufficiency of the evidence. Bergman also submits a pro se 'statement of

additional grounds for review under RAP 10. 10. Because the area Bergman entered did not


qualify as a " building" within the meaning of the burglary statute, RCW 9A.52. 030, as

interpreted by our Supreme Court, we reverse and remand for,dismissal of the burglary charge

with prejudice.
No. 44133 -1 - II



                                                         FACTS


          An employee of.a metal recycling plant called 91.1 after observing surveillance camera

images of two men removing buckets from a portion of the plant' s grounds. Responding officers

detained Bergman and another man, Michael Hall, nearby. Officers found the buckets still on

the premises, in an open area accessible from the sidewalk. The State ultimately charged

Bergman with one count each of theft and burglary, both in the second degree.

          At trial, the State' s evidence established that the portion of the grounds from which the

surveillance images show Bergman removing the buckets was a paved area largely surrounded

by two buildings, a chain link fence that encloses much of the rest of the plant' s grounds, and a

barrier   composed of stacks of      large cement blocks.'       A driveway between one of the buildings

and the cement block barrier provided access to the yard, but the recycler placed in the driveway

several   20- to 30 -foot   long " roll   -off   boxes to block that   road   from individuals ...   driving in."

Verbatim Report of Proceedings ( VRP) at 122 -23.


          The undisputed testimony and photographic evidence established, however, that a person

could walk into the yard between the roll -off boxes and one of the buildings along a passage

partially obstructed by plants and various pieces of detritus. The surveillance video and Hall' s

testimony established that Bergman accessed the yard via this passageway.

          The jury returned verdicts of guilty on the burglary charge and not guilty on the theft

charge. Bergman timely appeals.




1 We refer to this area as the " yard" or " storage yard."


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No. 44133 -1 - II



                                                     ANALYSIS


          After setting forth the standard of review, we address Bergman' s challenge to the

sufficiency of the evidence. Reversing on that ground, we do not reach the issues in his

statement of additional grounds.



                                              I. STANDARD OF REVIEW


          An appellate court considering whether sufficient evidence supports a criminal conviction

must " view the evidence in the light most favorable to the prosecution and determine whether


any rational fact finder could have found the essential elements of the crime beyond a reasonable

doubt." State    v.   Engel, 166 Wn.2d 572, 576, 210 P. 3d 1007 ( 2009).              The meaning of a statute

presents a question of     law   reviewed     de   novo.   Engel, 166 Wn.2d     at   576. Where a conviction


rests on insufficient evidence, the remedy is to reverse and remand for dismissal of the charge

with prejudice. Engel, 166 Wn.2d at 581; State v. DeVries, 149 Wn.2d 842, 845, 72 P. 3d 748

 2003).


                                       II. SUFFICIENCY OF THE EVIDENCE


          RCW 9A.52. 030( 1)      provides     that "[   a] person is guilty of burglary in the second degree if,

with intent to commit a crime against a person or property therein, he or she enters or remains

unlawfully in   a   building   other   than   a vehicle or a      dwelling." RCW 9A.04. 110( 5) defines

  b] uilding" as including " any dwelling, fenced area, vehicle, railway car, cargo container, or

any other structure used for lodging of persons or for carrying on business therein, or for the use,

sale, or deposit of goods."




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No. 44133 -1 - II



           The parties dispute only whether the storage yard qualifies as a " fenced area" within the

meaning of RCW 9A.04. 110( 5). 2 Br. of Appellant at 5 - 12, Br. of Resp' t at 7 -16. In Engel, 166
Wn.2d at 578 -81, our Supreme Court interpreted this term in light of common law concepts

consistent with the statute, as RCW 9A.04. 060 directs. The court declined to find the term


ambiguous and        based its     holding   on    the   law' s "   plain
                                                                            meaning." Engel, 166 Wn.2d at 579 -80.

           A combination of fencing, piles of rock and gravel, and embankments " encased" the

property    at   issue in Engel. 166 Wn. 2d           at   574 -75.      The State argued there that the " fenced area


includes an area partially enclosed by a fence, where topography and other barriers combine with

the fence to     close off   the   area   to the   public."    Engel, 166 Wn.2d at 578. The court disagreed,


stating:


            the] "fenced area" is limited to the curtilage of a building or structure that itself
           qualifies as an object ofburglary ( as defined in RCW 9A.04. 110( 5)). The curtilage
           is an area that is completely enclosed either by fencing alone or ... a combination
           of fencing and other structures.

Engel, 166 Wn. 2d       at   580 ( emphasis        added).     In rejecting the State' s argument, the Engel court

noted that


             u] nder the State' s interpretation, would -be petty criminals who trespass might be
           liable for burglary even if the property line at their point of entry were unfenced
           and unmarked, ...      even if the property were such that they could enter and remain
           without being aware that it was fenced.

166 Wn.2d at 580.




2 The State argued in the trial court that the yard might also qualify as a structure used for
carrying on business, and the court instructed the jury accordingly. The State properly abandons
that argument here. The storage yard does not qualify as a structure under the burglary statute' s
definition of building: it was not "' constructed or built ' and has no roof or permanent walls,
other than the walls of the two adjacent buildings. See State v. Johnson, 132 Wn. App. 400, 408,
 132 P. 3d 737 ( 2006) ( quoting WEBSTER' S THIRD NEW INTERNATIONAL DICTIONARY 2267
 1969)).

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No. 44133 -1 - II



          The State contends it presented sufficient evidence here to support the element, even


though fencing and other structures did not completely enclose the yard, because ( 1) a reasonable

juror " could     conclude    that the   gaps were unsubstantial. [sic],"   Brief of Respondent at 16, and ( 2)


the   barriers   and "[   n] o [ t]respassing" signs sufficed " to alert [ Bergman] that the property was not

open   to the    public,"   Brief of Respondent at 14. We find neither contention persuasive.


          As for the first, the photographic evidence and uncontroverted testimony establish that

Bergman passed through a gap easily wide enough to accommodate a person: only plants and

debris   made access somewhat            difficult.   Even assuming that the roll -off boxes qualify as

 fencing"    or " structures,"    the plants and piles of debris plainly do not: they instead fall within

the categories of barriers the Engel court held insufficient. Engel, 166 Wn.2d at 574 -75, 580.


          The second contention overlooks the fact that the Engel court' s concern involved " would -


be petty   criminals who       trespass."    166 Wn.2d at 580. That the signs and obstructions notified


Bergman that he did not have permission to enter thus has no bearing on that concern: the Engel

court clearly assumed that its hypothetical petty criminals would realize from the circumstances

that entry onto the property was prohibited.

          We hold that the yard did not qualify as a " fenced area" within the plain meaning of

RCW 9A.04. 110( 5).           Under Engel, to convict Bergman of burglary rather than merely a criminal

trespass offense, the State had to prove that he entered an area " completely enclosed" by " a

combination of       fencing    and other structures."     166 Wn.2d   at   580. Instead, the State showed that


Bergman entered the yard through a walkway partially obstructed only by plants and debris.




3 Even with the obstructions, the State' s photographs clearly show a space wide enough for a
person to walk into the yard without significant difficulty.
                                                             5
No. 44133- 1- 11



        As discussed, where a conviction rests on insufficient evidence, the remedy is. generally

to reverse and remand with instructions to dismiss the charge with prejudice. De Vries, 149


Wn.2d at 845. Under certain circumstances, RAP 12. 2 authorizes us to remand for entry of a

conviction on an included offense, but here we may not because the State did not request, and the

trial court did not give, jury instructions on any included offense. See In re Pers. Restraint of

Heidari, 174 Wn.2d 288, 292 -96, 274 P. 3•d 366 ( 2012).


        We reverse and remand for dismissal of the burglary charge with prejudice. Resolving

the appeal on this ground, we do not reach the issues raised in Bergman' s statement of additional

grounds.




        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 in accordance with RCW


2. 06. 040, it is so ordered.




                                                       BJ       A.C. J.

 We concur:




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