                                                                           FILED 

                                                                        JULY 30, 2015 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )         No. 31908-3-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
ROMAN S. BUSEV,                               )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       FEARING, J. - A jury convicted Roman Busev of second degree burglary for

entering the Pasco Walmart store in violation of a court order. On appeal, Busev argues

that the trial court violated the separation of powers doctrine when it allowed the jury to

find unlawful entry, an element of burglary, based on violation of an earlier court order.

He also argues that the State did not prove the crime because Walmart never excluded

him from the premises and the exclusion from the premises by the premises owner or

occupier, rather than a court order, is essential for a conviction. We disagree with both

contentions and affirm the conviction.
No. 31908-3-II1
State v. Busev


                                           FACTS

       On April 29, 2011, Roman Busev pled guilty, in Pasco Municipal Court, to

shoplifting. The judgment imposed a jail sentence of 364 days, with credit for 64 days

served and the remaining 300 days suspended. The 'sentence included a probation term of

two years and required that, as a condition of probation and suspended jail time, Busev

not enter any Walmart. The sentence read: "Stay out of Walmart." Exhibit (Ex.) at 1.

Presumably the Pasco charges related to conduct in the Pasco Walmart store.

       On September 27,2012, Roman Busev entered the Pasco Walmart store. Busev

pulled a bottle of liquor from the store's shelf and exited the store without paying for the

bottle. A Walmart employee phoned the Pasco Police Department, and a member of the

department arrested Busev for shoplifting .

                                       .PROCEDURE

       The State of Washington charged Roman Busev with second degree burglary in

violation ofRCW 9A.S2.030. On the day of trial, Busev moved in limine to exclude the

April 2011 Pasco Municipal Court judgment and sentence. Busev argued that his

entering the Walmart store on September 27,2012 constituted a probation violation, but

did not support a burglary charge. He argued that Walmart had never disinvited him

from the store and the lack of consent of the building owner, not the State's or the court's

lack of consent, drives the burglary statute's definition of a person who is not licensed,

invited or otherwise privileged to enter the store.

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No. 31908-3-II1
State v. Busev


       The trial court concluded that the motion in limine constituted a motion to dismiss

and thus was untimely. The trial court denied the motion. The trial court admitted the

April 2011 judgment and sentence as exhibit 1 during trial.

       During trial, a Walmart employee testified that anyone subject to a court order

precluding him from entry of a Walmart store would not be welcome in the store. After

the State rested its case, Roman Busev moved to dismiss on the ground that the April

2011 judgment and sentence was insufficient to show Busev entered Walmart unlawfully.

The trial court denied the motion to dismiss.

       The trial court instructed the jury that:

             To convict the defendant of the crime of burglary in the second
      degree, each of the following elements of the crime must be proved beyond
      a reasonable doubt:
             (1) That on or about September 27,2012, the defendant entered or
      remained unlawfully in a building;
             (2) That the entering or remaining was with intent to commit a crime
      against a person or property therein; and
             (3) That this act occurred in the State of Washington.

Clerk's Papers (CP) at 28. The court also instructed the jury:

             A person enters or remains unlawfully in or upon premises when he
      or she is not then licensed, invited, or otherwise privileged to so enter or
      remam.

CP at 29. No jury instruction referenced the Pasco Municipal Court order precluding

Roman Busev from entering a Walmart. The jury found Busev guilty of burglary in the

second degree.


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No. 31908-3-111
State v. Busev


                                  LA W AND ANALYSIS

       Roman Busev identifies only one issue on appeal: whether the trial court violated

the separation of powers doctrine when it allowed the jury to find unlawful entry based

on Busev's violation of an earlier court order. Nevertheless, he conflates this argument

with argument on a distinct issue: whether the State presented sufficient evidence to

convict him of the crime of burglary when it presented evidence of a court order of

exclusion from Walmart but no evidence that Walmart disinvited him from the store. We

address the two issues separately.

       We avoid deciding constitutional questions when a case may be fairly resolved on

other grounds. Cmty. Telecable ofSeattle, Inc. v. City ofSeattle, Dep 't ofExec. Admin.,

164 Wn.2d 35, 41, 186 P.3d 1032 (2008). Therefore, we address Roman Busev's

sufficiency of evidence argument first.

                                  Sufficiency of Evidence

       Roman Busev does not expressly argue that the State presented insufficient

evidence to convict him of second degree burglary. Nor does he list insufficiency of

evidence as one of the issues on appeal. Nevertheless, Busev impliedly forwards this

argument when he contends violation of a court order does not constitute a predicate act

involving unlawful entry into a building and assigns error to the trial court's refusal to

grant his motion to dismiss. Because Busev raised the argument below, because the

argument falls within other arguments asserted on appeal, because the State responded to

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No. 31908-3-111
State v. Busev


the argument, and because Busev cites authority in support of this contention, we address

the argument anyway. This court will reach the merits of an issue if the issue is

reasonably clear from the brief, the opposing party has not been prejudiced, and this court

has not been overly inconvenienced. State v. Grimes, 92 Wn. App. 973, 978, 966 P.2d

394 (1998).

       Under RCW 9.94A.700(5)(e), the legislature has authorized the trial court to

impose crime-related prohibitions. State v. Zimmer; 146 Wn. App. 405, 413, 190 PJd

121 (2008). The Pasco Municipal Court presumably exercised this authority when it

revoked, in April 2011, Roman Busev's privilege to enter Walmart. The State presented

no evidence that Walmart informed Roman Busev that he was unwelcome at its store.

We must decide if the court order suffices to convict Busev of second degree burglary.

       A person commits second degree burglary

              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.52.030(1). Elsewhere "unlawful entry" or "remain[ing]" in a building is

circumscribed as:

              A person "enters or remains unlawfully" in or upon premises when
       he or she is not then licensed, invited, or otherwise privileged to so enter or
       remam.

RCW 9A.52.01O(5). The latter statute does not expressly define unlawful entry as

including the violation of a court order. The definition of unlawful entry applies to first

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No. 31908-3-111
State v. Busev


degree burglary and residential burglary in addition to second degree burglary. RCW

9A.52.020 and .025.

       Burglary has two elements: (1) the accused enters or remains unlawfully in a

dwelling other than a vehicle with (2) an intent to commit a crime against a person or

property therein. State v. Steinbach, 101 Wn.2d 460,462,679 P.2d 369 (1984); State v.

SUnton, 121 Wn. App. 569,573, 89 PJd 717 (2004); State v. McDaniels, 39 Wn. App.

236,239,692 P.2d 894 (1984). The State's evidence must independently satisfy each

element. State v. SUnton, 121 Wn. App. at 573.

       Roman Busev impliedly concedes the second element of the crime. He entered the

Walmart store with intent to steal liquor, and thus theft serves as the predicate crime. He

argues the State did not satisfy the first element of the crime since he did not enter the

store unlawfully.

       To establish an unlawful entry, the State must introduce evidence the entrant was

not then licensed, invited, or otherwise privileged to so enter or remain. State v.

Kilponen, 47 Wn. App. 912, 918, 737 P.2d 1024 (1987). Walmart is a retail store open to

the public. A lawful entry of a store, even one accompanied by nefarious intent, is not by

itself a burglary. State v. Allen, 127 Wn. App. 125, 137, 110 P.3d 849 (2005).

               [AJ person whose license, invitation, or privilege to enter or remain
       in a retail establishment has never been withdrawn and who enters the store
       through a public entrance while the store is open for business is licensed,
       invited, or otherwise privileged to enter or remain, even ifhe intends from
       the start to shoplift or forms that intent while inside the store.

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No. 31908-3-111
State v. Busev



State v. Klimes, 117 Wn. App. 758, 760, 73 P.3d 416 (2003), disapproved on other

grounds by Allen, 127 Wn. App. 125. Nevertheless, a store owner's notice to an

individual that the individual is banned from the store leads to an unlawful entry if the

individual returns. State v. Kutch, 90 Wn. App. 244, 249, 951 P.2d 1139 (1998).

       The parties focus attention on two decisions addressing convictions for burglary:

State v. Stinton, 121 Wn. App. 569 and State v. Wilson, 136 Wn. App. 596, 150 P.3d 144

(2007). State v. Stinton supports the State's position, but only to a limited extent. The

court held that violation of a protection order provision can serve as the predicate crime

for residential burglary. In other words, violation of a court order satisfies element two

of the crime. Matthew Stinton conceded the unlawful entry element of the crime, so this

court did not analyze whether violation of a court order suffices for element one of

burglary.

       Roman Busev distinguishes State v. Stinton on the ground that violating a no-

contact order is a crime, RCW 9A.46.080, whereas violating a community custody

condition is not a criminal offense. RCW 9.94A.737. This difference is important when

addressing the intent to commit a crime element of burglary. Nevertheless, the element

of unlawful entry does not require that entry be criminal. An entry that "is not then

licensed, invited, or otherwise privileged" suffices under RCW 9A.52.010(5).




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No. 31908-3-111
State v. Busev


       In State v. Wilson, 136 Wn. App. 596, this court affirmed the trial court's

dismissal of burglary charges against Gregory Wilson. A district court entered an order

prohibiting Wilson from contact with his girlfriend. The order listed the girlfriend's

address, but did not prohibit Wilson's presence at that address. Wilson entered the

residence and assaulted his girlfriend. We held that, although Wilson's conduct inside

the home was unlawful, his act of entering and remaining inside the residence was not

unlawful since the order did not exclude him from the residence. In so holding, we wrote

language favorable to Roman Busev:

              It is the consent, or lack of consent, of the residence possessor, not
      the State's or court's consent or lack of consent, that drives the burglary
      statute's definition of a person who 'is not licensed, invited, or otherwise
      privileged to do so enter or remain' in a building. Here, [the girlfriend] ... ,
      not the State, occupied the ... residence.

State v. Wilson, 136 Wn. App. at 609 (citations omitted).

      The controlling decision is not Wilson or Stinton, but State v. Sanchez, 166 Wn.

App. 304, 271 P.3d 264 (2012). As part of a felony conviction, the superior court entered

a domestic violence order against Eliseo Sanchez. The order banned Sanchez from the

residence and place of work of his former wife. After a one year absence, Sanchez

returned to the home. His ex-wife reluctantly consented to Sanchez' occupation of the

home, and during a week's occupation the former couple engaged in consensual sex. On

one afternoon, Sanchez forcibly raped his former wife. The State charged him with




                                              8

No. 31908-3-III
State v. Busev


residential burglary, among other crimes. The trial court dismissed the burglary charge

because the past wife consented to Sanchez' return to the home.

       In State v. Sanchez, this court reversed the dismissal of the burglary charge. We

noted that only a judge may alter a court order and Sanchez could not reasonably rely on

his ex-wife's decision to countermand the order.

       Eliseo Sanchez argued, on appeal, that language in State v. Wilson compelled

dismissal of the burglary charged. He emphasized the language in Wilson that the

owner's consent or lack thereof, not the State's consent or lack thereof, controls whether

the accused entered the premises lawfully. We observed that the holding in Wilson is

based primarily on the fact that the restraining order did not preclude the accused from

entering the home. The order against Sanchez expressly barred him from his ex-wife's

home. The Wilson court acknowledged that the restraining order could have excluded

Gregory Wilson from the residence. Sanchez held that the property possessor may not

trump an order of the court. A court may determine who, for purposes of a burglary

charge, can be lawfully on the property.

       Another decision supports our conclusion. In State v. Kilponen, 47 Wn. App. 912

(1987), a restraining order excluded Gerald Kilponen from the family home. The court

upheld a conviction of first degree burglary based on the court order.




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No. 31908-3-II1
State v. Busev


       We note that a Walmart employee testified that, with the court order, Roman

Busev would no longer be welcome inside a Walmart store. We do not address whether

this evidence alone could be sufficient to uphold the conviction.

                                   Separation of Powers

       To repeat, a person "'enters or remains unlawfully' in or upon premises when he

or she is not then licensed, invited, or otherwise privileged to so enter or remain." RCW

9A.52.010(5). The statute does not expressly define unlawful entry as including the

violation of a court order. Therefore, Roman Busev argues the judiciary may not define

the elements of a crime and the trial court's defining unlawful entry as violation of a

court order usurps the legislature's power. Busev emphasizes that the legislature

possesses the prerogative to define the elements of a crime. State v. Wadsworth, 139

Wn.2d 724, 734,991 P.2d 80 (2000).

       Roman Busev's argument is based on the false assumption that the trial court

defined unlawful entry as including a violation of a court order. No jury instruction

informed the jury that a court order precluding one from entry of premises could form the

basis for an unlawful entry when one enters the bUilding. Roman Busev's jury was free

to determine whether or not violation of the Pasco Municipal Court order by Busev

constituted unlawful entry.

       One of the fundamental principles of the American constitutional system is that

the governmental powers are divided among three departments, the legislative, the

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No.31908-3-III
State v. Busev


executive, and the judicial, and that each is separate from the other. State v. Osloond, 60

Wn. App. 584,587,805 P.2d 263 (1991). Washington's constitution, much like the

federal constitution, does not contain a formal separation of powers clause. Osloond, 60

Wn. App. at 587. Nonetheless, the very division of our government into different

branches has been presumed throughout our state's history to give rise to a vital

separation of powers doctrine. In re the Salary ofthe Juvenile Director, 87 Wn.2d 232,

238-40,552 P.2d 163 (1976); Osloond, 60 Wn. App. at 587. Washington Constitution

article II establishes the legislative branch, article III establishes the executive branch,

and article IV establishes an independent judiciary.

       The validity of the doctrine of separation of powers does not depend on the

branches of government being hermetically sealed off from one another. Carrick v.

Locke, 125 Wn.2d 129, 135, 882 P.2d 173 (1994). The different branches must remain

partially intertwined if for no other reason than to maintain an effective system of checks

and balances, as well as an effective government. In re the Salary ofthe Juvenile

Director, 87 Wn.2d at 239-40. The doctrine serves mainly to ensure that the fundamental

functions of each branch remain inviolate. Carrick v. Locke, 125 Wn.2d at 135.

       The separation of powers doctrine is grounded in flexibility and practicality and

rarely will offer a definitive boundary beyond which one branch may not tread. In re the

Salary ofthe Juvenile Director, 87 Wn.2d at 240. The question to be asked is not

whether two branches of government engage in coinciding activities, but rather whether

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No. 31908-3-111
State v. Busev


the activity of one branch threatens the independence or integrity or invades the

prerogatives of another. Zylstra v. Piva, 85 Wn.2d 743,750,539 P.2d 823 (1975). In

cases specifically involving the judicial branch, our Supreme Court has expressed

vigilance against the judicial branch being assigned or allowed tasks more properly

accomplished by other branches. Carrick v. Locke, 125 Wn.2d at 136.

       Roman Busev argues that, since the legislature did not expressly state that

violation of a court order qualified as an unlawful entry, a court cannot allow a jury to

convict one of burglary by reason of violating a court order. He forwards no case that

holds or remotely suggests that a trial court violates the separation of powers under the

circumstances presented. Under Busev's argument, many, ifnot most, manners, modes

and methods of unlawful entry could avoid prosecution because the legislature did not

expressly declare them to be unlawful.

       In the case on appeal, the trial court did not define a crime in conflict with any

state statute. The trial court did not create law. The trial court instead fulfilled its

traditional role of identitying the applicable law for the facts of the case and instructing

the jury as to the law. The trial court did not direct the jury to declare Busev guilty by

reason of his violating the court order. It did not impinge or impose on the independence

and integrity of the legislature.

                                       CONCLUSION

       We affirm the judgment of guilt against Roman Busev for second degree burglary.

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No.31908-3-II1
State v. Busev


      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



                                                      Fearing, J.

WE CONCUR: 




~~    Brown, A . .J.     ­                        
   Lawrence-Berrey, J.




                                           13 

