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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,
                                                          DIVISION ONE
                        Respondent,
                                                          No. 69507-0-1
                   v.

                                                          PUBLISHED OPINION
KEVIN JOHN MORAN,

                        Appellant.                        FILED: May 19, 2014


        Dwyer, J. — Kevin Moran was charged with and convicted of residential

burglary after tampering with a sewage pipe at the house of his ex-wife, Karen

Moran. Kevin1 cut open the sewage pipe and filled it with foam that hardens and

expands once it contacts air, which caused the toilet and the bathtub to back up.

To carry out his act of sabotage, Kevin crawled underneath the deck, through an

access door set in the house's foundation, and into a lighted area beneath the

house with access to the pipe. On appeal, he contends that the State failed to

present sufficient evidence that he entered a "dwelling," as required by the

residential burglary statute. He also contends that the trial court erred in denying

his motion for a new trial based on newly discovered evidence. We hold that

sufficient evidence was presented at trial to support Kevin's conviction of


        1 As this case involves three individuals who share the last name "Moran," our opinion will
refer to each by his or her first name. No disrespect is intended.
No. 69507-0-1/2



residential burglary, and that the trial court did not abuse its discretion in denying

his motion for a new trial. Accordingly, we affirm.

                                           I


        Kevin and Karen were married for 23 years, during which time they built a

house together. Kevin was the general contractor and did a fair amount of labor

on the house. The couple divorced in 2007. In the divorce decree, Karen was

awarded sole possession of the house, but Kevin retained half ownership and

both parties agreed that they would eventually sell the house and split the sale

proceeds. Still, Kevin was required to obtain Karen's permission in order for him

to enter the premises. Although their divorce had begun amicably, their

relationship deteriorated over time. Kevin exhibited "tremendous animosity"
toward Karen, based, in part, on the fact that she maintained possession ofthe

home.

        On December 23, 2010, Karen left the house to pick up her boyfriend who

had come in from out of town to visit. Kevin had not asked for Karen's

permission to come to the house on that day. When Karen returned with her
boyfriend to the house, she found a message spray-painted in red on the garage
door: "Thou shalt not covet." Later that evening, a toilet on the main floor began

to back up, and the following day the bathtub also began to back up. Karen
called a plumber, who went underneath the house and discovered that a sewer
pipe had recently been patched using plumber's cement. The plumber
concluded that the sewer pipe underneath the house had been cut and filled with
foam that hardens and expands once it contacts air. This caused the toilet and

                                          -2-
No. 69507-0-1/3



the bathtub to back up.

       In order to reach the only access door to the area in which the sewer pipe

was located, it is necessary to first remove the lattice that hangs down from the

deck to the ground and then crawl under the deck a short distance. The access

door is set in the foundation of the house. Once through the access door, the

area is lighted and there is enough space to stand. The floor is covered with
plastic, nothing is stored there, and the space cannot be accessed from inside

the house.

       Kevin, who was living with his girl friend, Lynda Kozak, at the time, told

Kozak that he had cut a pipe underneath the house and filled it with "some kind

of a solution" so that the toilet and shower would back up with sewage. He

bragged that he had "F'ed up their Christmas," presumably referring to Karen and
her boyfriend. Kozak also found a receipt from Home Depot listing several
purchases, including foam filler and spray paint.
       Shawn Moran, Kevin's and Karen's son, called Kevin to confront him

about tampering with the sewer pipe. Karen listened to their conversation on
Shawn's speakerphone, and heard Kevin tell Shawn to "let them clean up their
own shit," that they could not prove that he had done anything, and that Shawn

should not get involved.

       In May 2011, Kozak contacted the Snohomish County Sherriffs Office and
turned over to them the Home Depot receipt. She admitted that she contacted
the authorities out of anger after Kevin moved out, taking with him, she believed,
 some of her personal belongings. After Kozak contacted the authorities, they
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No. 69507-0-1/4



obtained a video from Home Depot showing Kevin purchasing the items on the

day in question.

        The State charged Kevin by information with committing the crime of

residential burglary. The case was tried to a jury. After the State rested, Kevin

argued that the State had presented insufficient evidence for the jury to find that

he had entered or remained unlawfully in a "dwelling"—a necessary element to

support a conviction of residential burglary. He argued that the State should only

be permitted to proceed with a charge of burglary in the second degree. The trial

court denied the defense request. The jury was instructed on residential burglary

and on the lesser-included offense of second degree burglary of a "building."

The jury convicted Kevin of residential burglary and he was sentenced within the

standard range.

        After the trial, Kevin's son provided a statement to the Snohomish County

Sheriff's Office, wherein he indicated that Kozak had offered to pay him to

tamper with the sewer pipe. Kevin moved for a new trial based on this

statement. The trial court denied the motion, concluding that the statement was

merely impeachment evidence and that it would not have changed the result of

the trial.

                                          II


        Kevin contends that insufficient evidence was presented at trial to support

his conviction of residential burglary. This is so, he asserts, because the State

failed to establish that he entered or remained unlawfully in a "dwelling." We

disagree.
No. 69507-0-1/5



       "When reviewing a challenge to the sufficiency of the evidence, we must

determine 'whether, after viewing the evidence in the light most favorable to the

prosecution any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.'" State v. Phuong, 174 Wn. App. 494,

501-02, 299 P.3d 37 (2013) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99

S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). We employ this standard of review "to

ensure that the trial court fact finder 'rationally appl[ied]' the constitutional

standard required by the due process clause of the Fourteenth Amendment,

which allows for conviction of a criminal offense only upon proof beyond a

reasonable doubt." Phuong, 174 Wn. App. at 502 (alteration in original) (quoting

Jackson, 443 U.S. at 317-18). "A claim of insufficiency admits the truth of the

State's evidence and all inferences that reasonably can be drawn therefrom."

State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

       Kevin asserts that the State proffered insufficient evidence to support his

conviction of residential burglary. As enacted by our state legislature, the crime

of residential burglary is as follows:

       (1) A person is guilty of residential burglary if, with intent to commit
       a crime against a person or property therein, the person enters or
       remains unlawfully in a dwelling other than a vehicle.
              (2) Residential burglary is a class B felony. In establishing
       sentencing guidelines and disposition standards, residential
       burglary is to be considered a more serious offense than second
       degree burglary.

RCW 9A.52.025 (emphasis added). "Dwelling" is defined as "any building or

structure, though movable or temporary, or a portion thereof, which is used or

ordinarily used by a person for lodging. RCW 9A.04.110(7) (emphasis added).

                                           -5-
No. 69507-0-1/6



       We first inquire which building or structure is at issue here. The record, as

well as the parties' briefing, reveals that the only building or structure at issue is

the house.


       We next inquire as to the use of the house. The record establishes that

the house was being used for lodging. Kevin does not contest this.

       We finally inquire whether Kevin entered a portion of the house and, if he

did, whether his entry was unlawful. The record establishes that Kevin did, in

fact, enter a portion of the house. In order to access the area at issue, Kevin

would have had to first remove the lattice that hung down from the deck to the

ground and then crawl under the deck to reach the access door, which was set in

the foundation of the building. Once through the access door, Kevin would have

entered a lighted area with plastic covering the floor, which was large enough for

him to stand up in. Clearly, this enclosed area beneath the living space,

regardless of what moniker is assigned to it, was a portion of the house. The

access door was set in the house's foundation, the house's utilities were

accessible from the area, and access could only be gained by crawling

underneath the deck of the house. Therefore, when Kevin entered the area, he

entered a portion of the house.

       Furthermore, the record establishes that Kevin's entry was unlawful.

Although Kevin had ownership rights in the house, Karen was awarded sole

possession of the house in the divorce decree. Kevin could only enter the

premises after obtaining Karen's permission. On the day in question, the record

shows that he did not obtain her permission. Accordingly, his entry was

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No. 69507-0-1/7



unauthorized and, hence, unlawful.

       Nevertheless, in support of his contention that the area at issue did not

constitute a dwelling, Kevin argues that (1) no one was living in the area at issue,

and (2) it was inaccessible from inside the residence. We have already

considered and rejected Kevin's first argument. State v. Neal, 161 Wn. App. 111,

114-15, 249 P.3d 211 (2011) (although no one was living in a tool room

contained within an apartment building, the tool room constituted a "portion" of a

building that was used for lodging). With respect to Kevin's second argument,

the plain language of the statute does not require an area such as this to be

accessible from inside the living space of a residence in order to be a "portion" of

the "dwelling." Moreover, although no court in Washington has considered
Kevin's second argument, courts in other jurisdictions have considered similar

arguments and rejected them. See, e^, Buroett v. State, 161 Ind. App. 157, 314
N.E. 2d 799, 803 (1974) ("Being underthe same roof, functionally interconnected
with and immediately contiguous to other portions of the house, it requires
considerable agility to leap over this fulsome interrelationship to a conclusion that
a basement is not part of a dwelling house because no inside entrance connects

the two.").

       A plain reading of the statute leads to the conclusion that sufficient
evidence was presented at trial to support Kevin's conviction of residential

burglary.
No. 69507-0-1/8



                                          III


       Kevin also contends that the trial court abused its discretion by denying

his motion for a new trial based on newly discovered evidence. This is so, he

avers, because the trial court misconstrued the nature of the new evidence,

thereby erroneously concluding that it was merely impeachment evidence that

would not have changed the result of the trial. We disagree.

      A denial of a motion for a new trial is reviewed for abuse of discretion.

State v. Burke. 163 Wn.2d 204, 210, 181 P.3d 1 (2008). "[Discretion is abused if

it is exercised on untenable grounds or for untenable reasons, such as a

misunderstanding of the underlying law that causes nonharmless error in the

trial." Burke. 163 Wn.2d at 210. This discretion does not allow the trial court to

"weigh the evidence and substitute its judgment for that of the jury, simply

because it may disagree with the verdict." State v. Williams. 96 Wn.2d 215, 221,

634 P.2d 868 (1981). "In this state a trial judge is not deemed a 'thirteenth

juror.'" Williams, 96 Wn.2d at 221-22.

       A new trial should be granted on the basis of newly discovered evidence

when the defendant has demonstrated that the evidence: "(1) will probably

change the result of the trial; (2) was discovered since the trial; (3) could not

have been discovered before trial by the exercise of due diligence; (4) is material;

and (5) is not merely cumulative or impeaching." Williams. 96 Wn.2d at 222-23.

"The absence of any one of these five factors is grounds for the denial of a new

trial." Williams. 96 Wn.2d at 223.




                                           8
No. 69507-0-1/9



      The basis for Kevin's motion for a new trial was a statement given by

Shawn, his son, to the Snohomish County Sherriff's Office, wherein Shawn

stated, among other things, that Kozak, Kevin's ex-girlfriend, had offered to pay

Shawn $300 to compromise the sewer pipe at his mother's house and that he

had overheard conversations between his mother and Kozak discussing how

they could get back at Kevin. The trial court denied Kevin's motion, concluding

that the newly discovered evidence would not probably change the result of the

trial and that the evidence was merely impeachment evidence.

      On appeal, Kevin contends that the trial court misapprehended the nature

of the new evidence, which led to its conclusion that it would not probably change

the result of the trial. Specifically, he contends that Shawn's statement—

considered with Kozak's admission that she only notified the authorities out of

desire for retaliation, and Kevin's testimony that he bought the items from Home

Depot at Kozak's direction—would likely change the result of the trial. Although

Shawn's statement does provide an additional theory that could have been

argued at trial, Kevin does not explain why this new theory would probably

change the result of the trial. Rather than explain why the jury would reject the

State's theory and accept the new theory based on Shawn's statement, Kevin's

briefing simply asserts that the result of the trial likely would change. This does

not provide a tenable basis for us to conclude that the trial court abused its

discretion in denying Kevin a new trial. See State v. Wilson, 71 Wn.2d 895, 899,

431 P.2d 221 (1967) (noting the "oft repeated observation that the trial judge who

has seen and heard the witnesses is in a better position to evaluate and adjudge

                                        -9-
No. 69507-0-1/10



than can we from a cold, printed record").

      Affirmed.


                                             ^•LJ^-^yi,

We concur:




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