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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                   No. 71749-9-1
                        Respondent,
                                                   DIVISION ONE
                v.



MITCHELL HENRY RAMM,                               UNPUBLISHED OPINION

                       Appellant.                  FILED: Septembers, 2015



          Becker, J. —A defendant is entitled to a jury instruction on a lesser

included offense when the evidence supports an inference that only the lesser

crime was committed. In this case, the trial court did not abuse its discretion

when it ruled that a lesser included offense instruction was not warranted

because no affirmative evidence raised an inference that Mitchell Ramm

committed criminal trespass and not burglary. The use of written peremptory

challenges during jury selection did not violate Ramm's right to a public trial. We

affirm.

          Around 10:00 p.m. on a Sunday night in January 2013, several police

officers arrived to investigate a disturbance at a high-rise building that was under

construction in the Belltown neighborhood in downtown Seattle. Approximately a

dozen floors of the building were partially complete, and there were no exterior

walls. At the edge of each floor, there was a safety railing consisting of two

cables. A six-foot fence with a foot of barbed wire on top surrounded the
No. 71749-9-1/2



construction site on all sides. There were signs on the fence warning against

entry approximately every 20 feet.

      When the officers arrived, they heard a male voice yelling and crashing

sounds from items being jettisoned from one of the upper floors. When police

officers shone a spotlight into the construction area, they could see a man on the

seventh or eighth floor. The officers could not find an entry point and used bolt

cutters to cut a lock on a gate to enter the construction area. They then

proceeded up makeshift stairs that were littered with debris and construction

materials.

       When the officers reached the eighth floor, Mitchell Ramm was standing

on the landing holding a three-foot-long piece of rebar with a hook on the end

over his head. Several officers drew their weapons and ordered Ramm to drop

the rebar. Ramm did not. He told the officers to drop their guns. An officer

attempted to use a stun gun against Ramm, but it could not penetrate his heavy

winter coat. Ramm slammed the rebar on a drafting table, "screamed

something," and ran "full tilt" towards the edge of the building. Officers feared

Ramm would jump off the building. However, when he reached the edge, Ramm

climbed over the cable safety railing and stood on a narrow ledge that was

approximately four inches wide.

       One of the officers approached Ramm and tried to encourage him to climb

back over the railing. He refused. Soon after, officers specializing in hostage

negotiation arrived and took over discussions with Ramm. Finally, at around
No. 71749-9-1/3



5:00 a.m. the following morning, Ramm climbed back over the cable fence and

surrendered.

       The building sustained a significant amount of property damage during the

incident. On two floors, there was spray painted graffiti on exposed concrete

areas. The graffiti included various numbers, symbols, and words, such as

"Hiram Ulysses Simson Grant," "Jesus Christ," and "Infadel." Many items such

as toolboxes, lightfixtures, rebar, and fire extinguishers were damaged, having

been thrown down the elevator shaft and stair shaft. The color of the graffiti

matched a symbol that was spray painted on Ramm's coat.

       The State charged Ramm with burglary in the second degree, a felony,

and obstructing a law enforcement officer and malicious mischief in the third

degree, both gross misdemeanors. After a period of competency restoration, the

case proceeded to trial. Ramm was present during a portion of jury selection, but

then refused to attend the trial.

       Some witnesses described Ramm as speaking unintelligibly during the

encounter. One officer said Ramm was "rambling" and not making sense and

another witness said he engaged in "gibberish adult talk about the end of the

world and conspiracies." One officer said that over the course of the night,

Ramm appeared to "come down" from some type of "mental crisis."

Nevertheless, Ramm did not assert a defense of insanity or diminished capacity

and he presented no expert testimony about his mental health status.

       After the State presented its evidence, the defense asked the court to

instruct the jury on criminal trespass in addition to the charged offense of
No. 71749-9-1/4



burglary. The trial court determined that the evidence did not support an

instruction on criminal trespass as a lesser included offense. The jury found

Ramm guilty as charged.

                       LESSER INCLUDED INSTRUCTION

       Ramm challenges the trial court's refusal to instruct the jury on the lesser

included offense of criminal trespass.

      Whether a defendant is entitled to a lesser included instruction is analyzed

under the two-pronged test outlined in State v. Workman, 90 Wn.2d 443, 447-48,

584 P.2d 382 (1978). First, each element of the lesser offense must be a

necessary element of the charged offense (legal prong). State v. Berlin, 133

Wn.2d 541, 545-46, 947 P.2d 700 (1997). Second, the evidence must raise an

inference that only the lesser offense was committed to the exclusion of the

charged offense (factual prong). State v. Fernandez-Medina, 141 Wn.2d 448,

455, 6 P.3d 1150 (2000).

      A person commits second degree burglary if he or she enters or remains

unlawfully in a building other than a vehicle or a dwelling with the intent to commit

a crime against a person or property in the building. RCW 9A.52.030. A first

degree criminal trespass conviction, on the other hand, requires proof that the

defendant knowingly entered or remained unlawfully in a building and does not

require additional intent to commit a crime. RCW 9A.52.070(1).

      The parties agree that the legal prong of the Workman test is met because

the elements of criminal trespass are necessary elements of the charged

offense, burglary in the second degree. See State v. Soto, 45 Wn. App. 839,
No. 71749-9-1/5



841, 727 P.2d 999 (1986). The issue, then, is whether the evidence supports an

inference that the defendant committed the lesser crime rather than the greater
crime.


         When analyzing the factual prong, we view the evidence in the light most

favorable to the party who requested the instruction at trial. State v. Henderson.

182 Wn.2d 734, 742, 344 P.3d 1207 (2015); Fernandez-Medina. 141 Wn.2d at

455-56. The evidence "must affirmatively establish the defendant's theory of the

case—it is not enough that the jury might disbelieve the evidence pointing to

guilt." Fernandez-Medina. 141 Wn.2d at 456.

          Ramm contends that our review of the trial court's decision is de novo

because the court committed an error of law in refusing to provide the instruction.

The trial court's ruling was based upon its determination that there was no

evidentiary basis to give the lesser included instruction. Our case law is clear

and well established that where, as here, the court denies a request for a lesser

included instruction based upon a determination that the evidence does not

support the inference the defendant committed only the lesser crime, this is a

ruling under the factual prong. And we review such rulings for an abuse of

discretion. See Henderson. 182 Wn.2d at 743; State v. Walker. 136 Wn.2d 767,

771-72, 966 P.2d 883 (1998). A trial court abuses its discretion if its decision "is

manifestly unreasonable or based upon untenable grounds or reasons." State v.

Powell. 126 Wn.2d 244, 258, 893 P.2d 615 (1995).

         Ramm's argument, here and below, hinges on the difference in the mens

rea required for burglary (intent) and that required for trespass (knowledge).
No. 71749-9-1/6



Ramm contends that the prominent signs on the fence, locked gates, and barbed

wire supplied evidence of his knowledge that he was entering the building site

unlawfully. He argues that the evidence suggesting he had a mental health

diagnosis tended to negate the higher mental state of intent to commit a crime

that was required to find him guilty of burglary. Thus, Ramm contends that the

jury could have found that he knowingly trespassed, but without intent to commit

any crime. We disagree.

       Whatever Ramm's intent when he entered the building site, he did not

simply remain on the premises. He painted graffiti and destroyed property.

There is no affirmative evidence in the record that his mental state was

diminished to the point that he did not intend to commit these criminal acts. The

trial court did not abuse its discretion in refusing to instruct the jury on criminal

trespass in the first degree.

                                    PUBLIC TRIAL

       Ramm contends that the exercise of peremptory challenges in writing

violated his constitutional right to a public trial and the public's right to open

proceedings.

       This argument is foreclosed by our Supreme Court's recent decision in

State v. Love, No. 89619-4, 2015 WL 4366419 (Wash. July 16, 2015).

       Here, the record reflects that the parties exercised peremptory challenges

in open court, and the court announced the stricken jurors in numerical order,
without revealing which party struck particular jurors. The information about how
the challenges were exercised is in the record because the prosecutor later read

                                            6
No. 71749-9-1/7



on the record the numbers of the jurors who were stricken and identified which

party struck each juror. Because the courtroom was not closed and the

information about how the strikes were exercised was available for public

scrutiny, the procedure did not violate Ramm's right to a public trial.

       Finally, although Ramm has submitted additional grounds for review, the

precise nature of the errors he alleges is unclear. See RAP 10.10(c) (appellate

court will decline to consider issues in statement of additional grounds for review

ifthey do not "inform the court of the nature and occurrence of alleged errors").

His allegations also appear to concern matters outside the record and cannot be

considered on appeal.

       Affirmed.




                                                                          £1

WE CONCUR:




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