                                                               i" iUL»t-
                                                      CUURT OF APPEALS DiV I
                                                       STATE OF WASHINGTON

                                                       2013HAR-U AH 10: 28
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                  No. 67709-8-1


                     Respondent,                      DIVISION ONE


            v.



GLENN TYLER SMITH,                                    UNPUBLISHED


                     Appellant.                       FILED: March 4, 2013




      Cox, J. — Glenn Smith appeals his conviction for second degree burglary.

He claims the trial court erroneously refused to provide a lesser included

instruction of third degree theft. He also argues that there was insufficient
evidence to convict him of second degree burglary. We disagree with both

claims and affirm.

       In 2007, Smith was caught shoplifting from a Wal-Mart store in Everett. A
Wal-Mart employee testified that she verbally told Smith that he was "trespassed"
or restricted from entering any Wal-Mart for his lifetime afterthis incident.
       In 2011, Smith was again caught shoplifting from the same Wal-Mart. The
State charged Smith with one count ofsecond degree burglary.
       At Smith's jury trial, he requested that third degree theft be included as a
lesser included offense instruction. The trial court denied Smith's request on the
basis that third degree theft is not a lesser included offense of second degree
burglary.
No. 67709-8-1/2



       The jury found Smith guilty of second degree burglary.

       Smith appeals.

                  LESSER INCLUDED OFFENSE INSTRUCTION

       Smith argues that his conviction for second degree burglary must be

reversed because he was entitled to a lesser instruction for third degree theft that

the trial court declined to give. We disagree.

       In Washington, the right to a lesser included offense instruction is

statutory.1 A defendant is entitled to an instruction of a lesser included offense if
the two prongs ofthe State v. Workman2 test are met. Under the legal prong,
each element of the lesser offense must be a necessary element of the charged

offense.3 Under the factual prong, the evidence presented in the case must
support an inference that the lesser crime was committed.4 "'Put another way, if
it is possible to commit the greater offense without having committed the lesser

offense, the latter is not an included crime.'"5




       1RCW 10.61.006 ("In all other cases the defendant may be found guilty of
an offense the commission of which is necessarily included within that with which
he or she is charged in the indictment or information.").

       290 Wn.2d 443, 447-48, 584 P.2d 382 (1978).
       3State v. Berlin. 133 Wn.2d 541, 545-46, 947 P.2d 700 (1997) (citing
Workman, 90 Wn.2d at 447-48).

       4JcL
       5]dat546n.1 (quoting State v. Frazier. 99 Wn.2d 180, 191,661 P.2d 126
(1983)).
No. 67709-8-1/3



       Because the trial court rejected Smith's proposed instruction on the basis

that third degree theft is not a lesser included offense of second degree burglary,

we review the claimed legal error de novo.6

       The elements of second degree burglary are (1) entering or remaining

unlawfully in a building other than a vehicle or dwelling, and (2) so doing with

intent to commit a crime against a person or property therein.7 The elements of

third degree theft are (1) the commission of a theft of (2) property or services not

exceeding $750 in value.8

       Here, the State charged Smith with second degree burglary. Because

none of the elements of third degree theft are necessary elements of second

degree burglary, the trial court properly denied Smith's request for a lesser

included instruction.

       Smith argues that he was entitled to the third degree theft instruction

because the second degree burglary charge was premised upon Smith's intent to

commit a "theft." Though the information9 and the to-convict instruction,10


       0 State v. Walker. 136 Wn.2d 767, 772, 966 P.2d 883 (1998).

       7RCW 9A.52.030(1); see State v. Brunson, 128Wn.2d 98, 104-05, 905
P.2d 346 (1995).

       8RCW 9A.56.050(1); see also RCW 9A.56.020(1) (defining theft).
        9See Clerk's Papers at 69 (emphasis added) (stating in the information
that "the defendant, on or about the 31st day of May, 2011, with intent to commit
a crime of theft against a person or property therein").

       10 See Clerk's Papers at 34 (emphasis added) (stating in the to-convict
instruction "that the entering or remaining was with intent to commit a crime of
theft against a person or property therein").
No. 67709-8-1/4



specified that the crime Smith intended to commit was "theft," this argument is

not persuasive for two reasons.

       First, Smith cites State v. Berlin11 to support his argument that the legal

prong of the Workman test turns on how an offense is charged and prosecuted,

not as it broadly appears in a statute. While this is a correct statement of law,

Berlin addressed a different issue than the issue in this case.

       In Berlin, the supreme court overruled State v. Lucky, which held that

under the legal prong of the Workman test, a reviewing court must look at "'the

elements of the pertinent charged offenses as they appeared in the context of the

broad statutory perspective, and not in the more narrow perspective of the

offenses as prosecuted.'"12 In Lucky, the State charged Lucky with second
degree assault committed with a deadly weapon under RCW 9A.36.021(1).

Lucky requested a jury instruction for the offense of unlawful display of a weapon

under RCW 9.41.270(1 ).13 The State argued, and the supreme court agreed,

that unlawful display of a weapon was not a lesser included offense "because it is

possible to commit second degree assault, under RCW 9A.36.021, without

displaying a deadly weapon."14




      11 133 Wn.2d 541. 947 P.2d 700 (1997). overruling State v. Lucky, 128
Wn.2d 727, 912 P.2d 483 (1996).

       12133 Wn.2d at 547 (quoting Lucky, 128 Wn.2d at 734).

       13 kL
       14 Id.
No. 67709-8-1/5



       But in Berlin the supreme court overruled Lucky partly because it would

"preclude[ ] a lesser included offense instruction whenever a crime may be

statutorily committed by alternative means."15 "A lesser offense will seldom
satisfy every statutory alternative means of committing the greater offense."16
Instead, the court held:

                A lesser included offense instruction is available to both the
       prosecution and the defense, the constitutional requirement of
       notice is incorporated into the Workman test, and the test allows
       both parties to effectively argue their theory of the case. Only when
       the lesser included offense analysis is applied to the offenses as
       charged and prosecuted, rather than to the offenses as they
       broadly appear in statute, can both the requirements of
       constitutional notice and the ability to argue a theory of the case be
       met. This is fair to both the prosecution and the defense.1171
       Here, the State charged and prosecuted Smith with second degree

burglary under RCW 9A.52.030. As discussed above, this crime has two

elements: (1) entering or remaining unlawfully in a building other than a vehicle

or dwelling, and (2) so doing with intent to commit a crime against a person or

property therein.18 RCW 9A.52.030 does not provide alternative means of
committing this offense. Thus, the Berlin court's concerns that it had with the rule
in Lucky are not present in this case, and the holding in Berlin does not extend to

this case.




       15 Id at 548.

       16 Id,
       17 Id. (emphasis added).
       18 RCW 9A.52.030(1); see Brunson, 128 Wn.2d at 104-05.
No. 67709-8-1/6



       Second, the supreme court has held that "[t]he intent to commit a specific

named crime inside the burglarized premises is not an 'element' of the crime of

burglary in the State of Washington."19 In State v. Bergeron, our supreme court

rejected a burglary defendant's argument that the information in his case was

defective because it did not specify the crime he intended to commit inside the

premises.20 Based on the history and text of the burglary statute, the court held

that "the specific crime or crimes intended to be committed inside burglarized

premises is not an element of burglary that must be included in the information,

jury instructions or in the trial court's findings and conclusions."21
       Although Bergeron addressed whether an information was defective, the

holding is still helpful here. Since the specific crime that a person intended to

commit is not an element of second degree burglary, it follows that actually

naming a specific crime does not change the elements of second degree

burglary.

       The fact that the State specified the crime Smith intended to commit was

"theft" in the information and to-convict instruction does not change the elements

of second degree burglary. Nor does it incorporate the elements of third degree

theft. As the State argues, it only had to prove that Smith "intended" to commit a

crime, here theft, not that a theft was actually "completed."




       19 State v. Bergeron. 105 Wn.2d 1,4,711 P.2d 1000 (1985).

       2014 at 6.
       21
            Id. at 16.
No. 67709-8-1/7



       Because we conclude that the legal prong of the Workman test was not

satisfied, we need not reach Smith's arguments regarding the factual prong. The

trial court's refusal to give the third degree theft instruction does not require

reversal of Smith's conviction.

                         SUFFICIENCY OF THE EVIDENCE

       Smith next argues that the State failed to present sufficient evidence that

he unlawfully entered or remained in the Wal-Mart store. Specifically, he

contends that the State failed to present sufficient evidence to show that Wal-

Mart previously notified him that his entry into their stores was unlawful. We

disagree.

       Evidence is sufficient to support a conviction if, viewed in the light most

favorable to the State, any rational trier of fact could have found that each

element of the crime was proved beyond a reasonable doubt.22 We draw all
reasonable inferences from the evidence in the State's favor and interpret the

evidence most strongly against the defendant.23 We assume "the truth of the
State's evidence and all inferences that reasonably can be drawn therefrom."24
We defer to "the trier of fact on issues of conflicting testimony, credibility of

witnesses, and the persuasiveness of the evidence."25



       22
            State v. Drum, 168 Wn.2d 23, 34-35, 225 P.3d 237 (2010).

       23 State v. Joy. 121 Wn.2d 333, 339, 851 P.2d 654 (1993).
       24 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

       25 State v. Fiser, 99 Wn. App. 714, 719, 995 P.2d 107 (2000).
No. 67709-8-1/8



       As discussed above, the elements of second degree burglary are (1)

entering or remaining unlawfully in a building other than a vehicle or dwelling,

and (2) so doing with intent to commit a crime against a person or property

therein.26 "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."27

       "A private property owner may restrict the use of its property to those

purposes for which it is lawfully dedicated so long as the restrictions are not

discriminatory."28 "The right to exclude extends even if the property is otherwise
open to the public."29 When a private property owner notifies a person that his or
her license, invitation, or privilege to enter that property has been revoked, that

person's presence may be unlawful for the purposes of proving the first element

of second degree burglary.30
       Here, Kristi Daggett, an "asset protection associate" for Wal-Mart, testified

that she "trespassed" or revoked Smith's license, invitation, or privilege to enter

any Wal-Mart for his lifetime.31 Daggett testified that in 2007 she caught Smith



       26 RCW9A.52.030(1); see Brunson, 128 Wn.2d at 104-05.

       27RCW9A.52.010(5).
       28 State v. Kutch, 90 Wn. App. 244, 247, 951 P.2d 1139 (1998).

       29 id,

       30 Id, at 249.
       31 Report of Proceedings (Aug. 30, 2011) at 21, 27-28.


                                          8
No. 67709-8-1/9



shoplifting.32 After she apprehended Smith, she handcuffed him and called the
Everett Police Department.33 She completed a "face sheet," which contained
Smith's personal information and the items that he shoplifted.34 She also took a

photograph of him to put in Wal-Mart's files.35 Daggett testified that she "issued"
Smith a "lifetime restriction" from Wal-Mart.36 She did not read the "Notification of

Restriction from Property" document word-for-word but gave Smith the following

explanation:

      A.      Because he was actually handcuffed, I went through the
      process of explaining what it meant. I almost, with very little
      variation, say the same thing every time I trespass somebody. And
      so I will start it and I will say you're no longer welcome to Wal-Mart,
      any Wal-Mart anywhere in the world, the rest of your life. Ifyou
      come back, you can and will be charged with criminal trespassing.
      If you come back and take something again, irrespective of dollar
      amount, they can choose to pursue burglary charges against you,
      making it an automatic felony.

              Then I ask if they understand the trespass. And often they
      say yes. And if they do, I will kind of reiterate the points again. Do
      you understand it's for life? Yes. Do you understand that it's all
      Wal-Marts and Wal-Mart entities, including Sam's Club and
      neighborhood markets? Yes. And then I tell them that it remains
      on file with Wal-Mart.[37]




      32 Id. at 24-25.

      33 Id. at 25.

      34 l± at 26.

      35 jd, at 29.
      36 id at 27.
      37
           Report of Proceedings (Aug. 30, 2011) at 28-29, 31.
No. 67709-8-1/10



She also testified that Smith did not sign the "Notification of Restriction from

Property" form because he was handcuffed.38
       Smith testified that he had not seen the "Notification of Restriction from


Property" document until he saw it in the discovery file for his case.39 He did not
recall whether the document was read to him.40 He testified that he did not

believe that he was prohibited from entering Wal-Mart, and he had been in the

store six or seven times in the "recent past" and was never approached about

being there.41 Smith also testified that he had been "trespassed" from other
stores, but he did not return to those stores because he knew if he was "caught,"

he could face criminal charges.42
       Deferring to the trier of fact's resolution of conflicting testimony and

viewing the evidence in light most favorable to the State, this evidence was

sufficient to establish that Wal-Mart notified Smith that his license, invitation, or

privilege from entering the store had been revoked. Therefore, there was

sufficient evidence that Smith unlawfully entered Wal-Mart.

       Smith argues that there was insufficient evidence to prove that he

received notice of the restriction. He cites State v. Kutch43 and points out factual


       38 id at 31.
       39 Report of Proceedings (Aug. 30, 2011) at 84.

       40 id at 85.

       41 id at 84-85.

       42 id at 88.
       43 90 Wn. App. 244, 951 P.2d 1139 (1998).

                                           10
No. 67709-8-1/11



distinctions between that case and this case to argue that the evidence does not

support a finding beyond a reasonable doubt that Smith received notice of the

restriction. But these factual distinctions are not material.

       In Kutch, Division Three of this court affirmed Robert Kutch's conviction of

second degree burglary.44 There, the Mervyn's store security guards caught
Kutch shoplifting in the store.45 At that time, Kutch signed a form that notified him
that his invitation to enter the Yakima Mall was revoked for one year.46 Kutch
was not given a copy of the form.47 The court concluded that Kutch was
"sufficiently notified that he was no longer invited into the mall as a member of

the general public."48
       Here, the fact that Smith did not sign the "Notification of Restriction from

Property" form and that he did not receive a copy of this form does not mean that
the evidence was insufficient to establish notice. In coming to its conclusion in

Kutch, Division Three explained that Kutch cited no authority that would require
Kutch to receive a copy of the notice.49 And the court noted that "[a] verbal
notice might just as adequately inform him that his invitation had been



       44 id at 249-50.

       45 id at 246.

       46 id

       47 id at 248.

        48 Id at 249.

        49 Id. at 248.



                                           11
No. 67709-8-1/12



revoked."50 Thus, the factual distinctions between Kutch and this case are not
material, and Kutch supports Smith's conviction.

       Smith also contends that the restriction notice is ambiguous as to how

long it applies because the written notice "is silent as to its duration."51 He again
attempts to distinguish this case from Kutch. in which the restriction notice stated

that it was applicable for one year.52 While the written notice here did not

indicate the length of the restriction, Daggett testified that she verbally told Smith

that the restriction would last his lifetime. This was sufficient evidence of the

length of the restriction. Smith does not cite any authority that a verbal

notification of the duration of the restriction is inadequate.

       We affirm the judgment and sentence.



                                                                       ,X

WE CONCUR:




      -c/j^jAay*                                  ^Q^yric^. ^


       50 id

       51 Appellant's Opening Brief at 17.
       52 id (citing Kutch. 90 Wn. App. at 248-49).

                                          12
