                                                                                                FILED
                                                                                     COURT OF APPEALS
                                                                                              DIVISION IT

                                                                                   2015 FEB 214 AM 9: 23
                                                                                    STATE OF WASHINGTON
                                                                                    BY__

    IN THE COURT OF APPEALS OF THE STATE OF WA                                                    INLTON


                                                   DIVISION II


 STATE OF WASHINGTON,                                                            No. 45056 -9 -II


                                          Respondent,                     PUBLISHED OPINION


             v.




 JUSTIN DEWAYNE MCPHERSON,


                                          Appellant.


             SUTTON, J. —    Justin Dewayne McPherson appeals his jury trial convictions for second

degree burglary, residential burglary, and second degree malicious mischief. He argues that ( 1)

the evidence was insufficient to support the residential burglary conviction because there was no

proof that the premises he entered, a jewelry store with an attached apartment, was a " dwelling,"

and (   2)    the accomplice liability statute is overbroad because it criminalizes constitutionally

protected speech.         We hold that under the facts of this case, the question of whether the jewelry

store and attached apartment was a " dwelling" is a question of fact for the jury and the evidence

supports the jury' s verdict on this element. We also follow our previous rejection of McPherson' s

accomplice liability statute argument. Accordingly, we affirm.

                                                          FACTS


             On the morning of March 20, 2013, someone broke into Frederick William Salewsky' s

jewelry       store   in Centralia   by   entering the   unoccupied store next   door   and   making   a   hole in the
No. 45056 -9 -II



adjoining       wall.'      Frederick'     s son   Jeremy Salewsky, 2            who worked in the jewelry store and lived in

an apartment above the store, was awoken by a noise, went downstairs to investigate, and

interrupted the burglary. Jeremy fired a shot toward a person he saw in the store and then saw that

person flee through the hole in the wall, but he was unsure if he had shot anyone. Jeremy did not

see the intruder' s face. The police later identified McPherson as a suspect after he checked into a

Tacoma hospital with a gunshot wound.


           The State charged McPherson with second degree burglary of the vacant store ( count I),

residential burglary of the jewelry store and attached apartment with a special allegation that the

victim of       the   burglary       was present at      the time     of   the   crime ( count    II), and second degree malicious


mischief ( count            III).    At trial, Jeremy testified that he lived in the apartment above the jewelry

store, that the only way to access the apartment was by the stairs located inside the store, and that

the apartment was separated from the store by a " swinging door" at the bottom of the stairway and

a   door   at   the   top   of   the   stairs   that   did   not   lock   or shut   securely. 3   1 Report of Proceedings ( RP) at

23 -24.


           Although the State did not specifically charge McPherson as an accomplice, the trial court

instructed the jury on accomplice liability using an instruction identical to Washington pattern jury

instruction 10. 51.                 11 WASHINGTON PRACTICE:                      WASHINGTON PATTERN JURY INSTRUCTIONS:


CRIMINAL 10. 51, at217 ( 3d ed. 2008).




I Frederick Salewsky owned the entire building, including the vacant portion of the building. The
vacant portion of the building and the jewelry store did not have a shared entrance.

2 Because the Salewsky' s share the same last name, 'we refer to them by their first names to avoid
confusion. We intend no disrespect.


3 There is nothing in the record about whether the " swinging door" was capable of being locked.


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No. 45056 -9 -II



          The jury found McPherson guilty as charged and found that he had committed the

residential burglary while the victim was present in the building or residence. McPherson appeals

his convictions.


                                                         ANALYSIS


          McPherson argues that the evidence was insufficient to support the residential burglary

conviction and that the accomplice liability statute is unconstitutionally overbroad. We reject both

arguments.



                                             I. SUFFICIENCY OF EVIDENCE


          McPherson first argues that the evidence was insufficient to prove the residential burglary

charge.    Specifically, he contends that because the jewelry store was not used for lodging, the

structure or building was not a " dwelling" as a matter of law. Br. of Appellant at 5 -6. We disagree.

           Evidence is sufficient to support a finding of guilt if, after viewing the evidence in the

light most favorable to the State, a rational trier of fact could find the essential elements of the


crime   beyond   a   reasonable doubt."          State   v.   Rose, 175 Wn.2d 10, 14, 282 P. 3d 1087 ( 2012). " A


claim of insufficient evidence admits the truth of the State' s evidence and all inferences that


reasonably    can    be drawn from that         evidence."      State v. Caton, 174 Wn.2d 239, 241, 273 P. 3d 980

 2012).


          Under RCW 9A. 52. 025( 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." "`      Dwelling'       means    any    building   or structure ... ,   or a portion



thereof, which      is   used or   ordinarily   used   by     a person   for   lodging."   RCW 9A.04. 110( 7).




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No. 45056 -9 -I1



            Washington courts have consistently held as a matter of law that when a building clearly
                                                                                                                                      4
is   used   for   lodging,       an unoccupied portion of the             building is   included in the definition   of   dwelling.

However, this             case    involves the      opposite      situation.      The jewelry store clearly is not used for

lodging,     but it includes         a portion— the apartment above                the store —that   is used for lodging. And

the   burglary       occurred       only in the     jewelry       store portion.     It is possible that if the portion of the


building used for lodging is insignificant in relation to the rest of the building or is physically

remote      from the           main portion of          the   building,   it may   not   constitute residential   burglary.     For


example, in State v. Neal, Division One of our court suggested that a person who burglarizes the


nave of a cathedral would not be guilty of residential burglary simply because someone sleeps in

the   organ       loft.   161 Wn. App. 111, 114, 249 P. 3d 211 ( 2011).

            But whether a building constitutes a " dwelling" under RCW 9A.52. 025( 1) cannot always

be determined             as   a matter of    law. In State v. McDonald, we held that the issue of whether an


unoccupied residence was a dwelling was a question of fact for the jury to decide based on all the

relevant evidence.               123 Wn.   App.    85, 90 -91, 96 P. 3d 468 ( 2004). As in McDonald, here we decline


to decide as a matter of law whether the jewelry store with an attached apartment was a dwelling,

and    instead hold that            whether       the   jewelry    store    and   attached apartment was a "      dwelling" is a

question of fact for the jury to decide.

            Because the dwelling issue is a question of fact, we must determine whether there was

sufficient evidence              for the   jury   to conclude that the         jewelry    store was a   dwelling. We hold that




4 State v. Moran, 181 Wn. App. 316, 321 -23, 324 P. 3d 808, review denied, 337 P. 3d 327 ( 2014)
 the area under the foundation of a house is a " dwelling" even though the area was not accessible
from the inside living quarters); State v. Neal, 161 Wn. App. 111, 113 -14, 249 P. 3d 211 ( 2011) ( a
tool room in an apartment building is a " dwelling" because it was a portion of a building used as
lodging); State v. Murbach, 68 Wn. App. 509, 513, 843 P. 2d 551 ( 1993) ( an unattached garage
with a door leading to a residence was a " dwelling" because it was a portion of a building used as
lodging).
No. 45056 -9 -II



there was.      Jeremy' s apartment was directly above the jewelry store, and the apartment and the

jewelry store were within a single structure. The apartment was not secured as a separate unit; it

was immediately adjacent to the store and was separated from the store only by a " swinging door"

at the bottom of the stairway and a door at the top of the stairs that could not be locked or secured.

RP   at   24 -25.   The sole access to the apartment was through the jewelry store, and Jeremy had

unlimited access to both the jewelry store and the apartment at any time of day.

          This evidence was sufficient for the jury to find that the apartment was not separable from

the jewelry store and, therefore, there was sufficient evidence to support the jury' s finding that the

jewelry     store constituted a "     dwelling." Accordingly, McPherson' s sufficiency of the evidence

argument fails.


                                     II. ACCOMPLICE LIABILITY INSTRUCTION


           McPherson       next    argues    that   the    accomplice    liability   statute,   RCW 9A. 08. 020, is


unconstitutionally overbroad because it criminalizes constitutionally protected speech in violation

of the First and Fourteenth Amendments. 5 McPherson' s arguments have been rejected in State v.

Coleman, 155 Wn.        App.      951, 960 -61, 231 P. 3d 212 ( 2010),        State v. Ferguson, 164 Wn. App. 370,

375 -76, 264 P. 3d 575 ( 2011),       and State v. Holcomb, 180 Wn. App. 583, 589, 321 P. 3d 1288, review

denied, 180 Wn.2d 1029 ( 2014).


           McPherson argues, however, that we should reject Coleman and Ferguson as wrongly

decided because they erroneously rely on cases involving conduct, whereas the act of "aiding" can




5
    The First Amendment           provides   in   part   that "[ c] ongress   shall make no     law ...   abridging the
freedom      of speech."    U. S. CONST.      amend.      I. The First Amendment applies to the states through
the Fourteenth Amendment.              Kitsap County v. Mattress Outlet, 153 Wn.2d 506, 511, 104 P. 3d
 1280 ( 2005).




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No. 45056 -9 -II


                             6
involve " pure   speech. "        Br.   of    Appellant   at    13 - 14;   Reply   Br.   of   Appellant   at   3 - 4. This identical


argument was rejected            in Holcomb.          As Division Three noted in rejecting this                    argument, "   the


                                                                            be ` in planning                                         7
required aid or agreement         to    aid   the   other person must                            or   committing [ the    crime]."



Holcomb, 180 Wn.        App.      at   590. Thus, " aiding"         was limited to acts that also involved conduct, so

Ferguson' s and Coleman' s reliance on case law involving conduct was not misplaced. We adhere

to the prior decisions and analysis in Coleman, Ferguson, and Holcomb, and McPherson' s


challenge to the accomplice liability statute fails.




6 McPherson does not address Holcomb, which was filed after the briefing for this appeal was
complete.




7 We note that the accomplice liability instruction here included the limiting language that was
discussed in Holcomb:
               A person is guilty of a crime if it is committed by the conduct of another
        person for which he or she is legally accountable. A person is legally accountable
        for the conduct of another person when he or she is an accomplice of such other
        person in the commission of the crime.
                 A person is an accomplice in the commission of a crime if, with knowledge
        that it will promote or facilitate the commission of the crime, he or she either:
                   1) solicits, commands, encourages, or requests another person to commit
        the crime; or

                   2) aids or agrees to aid another person in planning or committing the
        crime.

                  The   word "          aid"    means     all    assistance    whether         given   by      words,   acts,

        encouragement, support, or presence.                       A person who is present at the scene and
        ready to assist by his or her presence is aiding in the commission of the crime.
        However, more than mere presence and knowledge of the criminal activity of
        another must be shown to establish that a person present is an accomplice.
               A person who is an accomplice in the commission of a crime is guilty of
        that crime whether present at the scene or not.
Suppl. Clerk' s Papers    at      43 ( Instruction 11) (        emphasis added).




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No. 45056 -9 -II



       Finding no error, we affirm McPherson' s convictions.




 We concur:




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