                                                                                                              FILED
                                                                                                       OMT OF
                                                                                                              APPEALS
                                                                                                            011VIsjon 11
                                                                                                     2014     22 AM 9: { 8
    IN THE COURT OF APPEALS OF THE STATE OF WASHING
                                                                                                               Xylks M TO
                                                  DIVISION II                                        in


STATE OF WASHINGTON,                                                            No. 43813- 5- 11


                                       Respondent,


         i




TRAVIS WADE NEWSOME,                                                       UNPUBLISHED OPINION




         PENOYAR, J. —          Travis Wade Newsome appeals his conviction of residential burglary.

Newsome previously            appealed    his first degree    burglary     conviction.    We reversed the .jury' s

verdict and remanded          for further    proceedings.     On remand, the trial court granted the State' s

                         and sentence      Newsome for       residential   burglary.     Newsome argues that the
motion   to    convict




court erred by granting the State' s motion and convicting him of residential burglary because
residential    burglary is    not a   lesser included   offense   of first degree burglary. The State concedes


error. We accept the State' s concession.


         Newsome' s conviction of residential burglary is reversed, and this matter is remanded for

conviction and sentencing for a lesser included offense of the greater offense, first degree
burglary,     or retrial on   the   alternate charge of residential   burglary.
43813 -5 -II



                                                            FACTS


          At his          trial, Newsome                         guilty to -first degree       burglary.    The trial court
                   jury                         pleaded not




instructed the jury to convict Newsome on first degree burglary if it found beyond a reasonable

doubt that Newsome ( 1)           entered or remained           unlawfully in      a   building' ( 2) with the intent to

commit a crime against a person or property therein ( 3) while being armed with a deadly weapon

when entering, remaining in, or fleeing from the building and ( 4) any of these acts occurred in
the State   of   Washington.      If the jury did not convict Newsome of first degree burglary, the jury
                                     findings         the                 charge       of   residential   burglary.   After
was   instructed to        make                  on           alternate




deliberating, the jury convicted Newsome of first degree burglary and did not fill in the verdict
form for the residential burglary charge.

          Newsome         appealed   his   conviction of      first degree burglary. This court reversed the first


degree                                      remanded        for further   proceedings.          In its opinion, this court
          burglary    conviction      and




recognized that the State might initiate further proceedings, including either a retrial on the

 alternate charge of residential burglary or a motion to convict and sentence on a lesser included
 offense.



          On     remand,     the State asked the trial court to convict and sentence Newsome for

 residential burglary, claiming that in this case residential burglary is a lesser included offense of
 Newsome' s first degree burglary conviction because the jury was instructed on residential

 burglary and the facts show the structure Newsome entered was both a building and a dwelling.
 The trial court granted the State' s motion and convicted Newsome of residential burglary,



   Jury   instruction defined "[ b] uilding"          as, "   in addition to its ordinary meaning, any dwelling,
 fenced area, vehicle, railway car, or cargo container. Building also includes any other structure
 used mainly for lodging of persons, for carrying on business therein or for the use, sale or deposit
 of goods."      Clerk' s Papers ( CP) at 56.
                                                                 2
43813 -5 -II




reasoning that a new trial on the charge of residential burglary was not necessary because the

facts were so clear in this case that the jury had to have found the victim lived in the building.

        Newsome appeals, pointing out that residential burglary requires proof of entry into a

dwelling    and   that   first degree   burglary,       as charged   here, does    not.   Thus Newsome argues his


current conviction should be reversed because it was not for a lesser included offense of his

original conviction.



                                                         ANALYSIS


        On remand, a court may convict and sentence a defendant to an offense without holding a

new trial if the record clearly shows the jury made explicit findings as to all of the necessary

elements of a     lesser included       crime.       In re Pers. Restraint of Heidari, 174 Wn.2d 288, 292, 274

P. 3d 366 ( 2012) ( quoting State         v.    Green, 94 Wn.2d 216, 234, 616 P. 2d 628 ( 1980)).                A lesser


offense is only included in a greater offense when each of the elements of the lesser offense is an
element of the greater offense, the legal prong, and the evidence supports an inference that the

defendant      committed    the lesser    crime,      the factual prong.    State v. Stevens, 158 Wn.2d 304, 310,

                                                    Gamble, 154 Wn.2d 457, 462 -63, 114 P. 3d 646 ( 2005)).          For
 143 P. 3d 817 ( 2006) ( citing State          v.




residential burglary to be a lesser included offense of first degree burglary in any particular case,
 the legal and factual prongs of a lesser included offense test must be satisfied.

         The legal prong is not met in this case because the jury instruction on first degree
                                               to find every legal    element of residential        burglary.   Whether a
 burglary   did   not require   the   jury

                                          is                  that the   jury   must   determine.    State v. McDonald,
 building   constitutes a    dwelling           an element




 123 Wn.    App.    85, 91, 96 P. 3d 468 ( 2004).          The jury found each element of first degree burglary

 and consistent with its instructions, the jury did not make any findings on residential burglary.


                                                                3
43813- 5- 11



Thus, the   jury   did   not   decide   whether   the   building   Newsome   entered was a   dwelling. 2 The trial

court erred by convicting and sentencing Newsome for residential burglary on remand because

the jury did not find beyond a reasonable doubt Newsome entered a dwelling.
        Newsome' s conviction of residential burglary is reversed, and this matter is remanded for

conviction and sentencing for a lesser included offense of the greater offense, first degree

burglary, or retrial on the alternate charge of residential burglary.

        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.




We concur:




 2
  Jury instruction defined "[ d] welling" as "            any building or structure which is used or ordinarily
 used by a person for lodging." CP at 57.
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