                                                              FILED
                                                          FEBRUARY 6, 2018
                                                      In the Office of the Clerk of Court
                                                     WA State Court of Appeals, Division III


           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

STATE OF WASHINGTON,                          )         No. 34762-1-III
                                              )
                      Respondent,             )
                                              )
               v.                             )         PUBLISHED OPINION
                                              )
JAMES DAVID DUNLEAVY,                         )
                                              )
                      Appellant.              )

         LAWRENCE-BERREY, A.C.J. — James David Dunleavy appeals his convictions for

second degree burglary and third degree theft. The convictions stem from Dunleavy, then

an inmate at the Walla Walla County jail, going into another inmate’s jail cell and taking

his food. The central issue raised by Dunleavy is whether a jail cell is a separate building

for purposes of RCW 9A.04.110(5). We hold that it is. We affirm Dunleavy’s

convictions, but remand for resentencing so the State can prove Dunleavy’s offender

score.

                                          FACTS

         Dunleavy was an inmate at the Walla Walla County jail in Unit E. In Unit E, there

are eight cells capable of housing two inmates per cell. The cells open into a day room.
No. 34762-1-III
State v. Dunleavy


In Unit E, the cell doors are open from about 6:00 a.m. until 9:00 p.m. An inmate is

permitted to close his cell door, but if he does, the door will remain locked until opened

the next morning.

       Dunleavy was hungry one day, so he asked inmate Kemp LaMunyon for a tortilla.

LaMunyon responded that he did not have enough to share, but would buy more later and

share with Dunleavy at that time. Dunleavy later bullied LaMunyon and threatened to

“smash [him] out.” Report of Proceedings (RP) at 5. Soon after, inmate John Owen

attacked LaMunyon. During the attack, Dunleavy snuck into LaMunyon’s jail cell and

took some of LaMunyon’s food.

       LaMunyon was seriously injured by Owen. Jail security investigated the fight and

the theft, and concluded that the two were related. Security believed that Dunleavy

staged the fight between Owen and LaMunyon to give him an opportunity to take

LaMunyon’s food. Because of the seriousness of LaMunyon’s injuries, and because

security concluded that the fight and the theft were related, the jail referred charges to the

local prosecuting authority. The State charged Dunleavy with second degree burglary,

third degree theft, and second degree assault.

       The State presented evidence of the jail’s policies through Sergeant Anthony

Robertson. Sergeant Robertson testified that new inmates are informed of the jail’s


                                              2
No. 34762-1-III
State v. Dunleavy


policies when they are booked into jail. Inmates are informed, “first and foremost, they

are not supposed to go into each other’s cell.” RP at 20. Sergeant Robertson explained

that cells are assigned to inmates, and each inmate can expect privacy in their assigned

space. Sergeant Robertson explained that inmates sometimes enter other inmates’ cells

without permission and if a separate crime occurs during the trespass, he will refer the

matter for prosecution as a burglary.

       After the State presented its case, Dunleavy moved to dismiss the second degree

burglary charge on the basis that an inmate’s cell is a separate building for purposes of

RCW 9A.04.110(5). The trial court considered the parties’ arguments, denied Dunleavy’s

motion to dismiss, and the case continued forward.

       Dunleavy called one witness who testified that Dunleavy did not conspire with

Owen to assault LaMunyon. After closing arguments, the case was submitted to the jury.

       The jury began deliberating at 1:30 p.m. At 4:00 p.m., the jury sent a written note

to the trial court through the bailiff. The note asked, “Are the Walla Walla county jail

policies legally binding? Are they considered law? What if we are not unanimous on a

certain count?” Clerk’s Papers (CP) at 5. The trial court, counsel, and Dunleavy

discussed how the trial court should respond. The trial court’s response read, “You are to

review the evidence, the exhibits, and the instructions, and continue to deliberate in order


                                             3
No. 34762-1-III
State v. Dunleavy


to reach a verdict.” CP at 5. No party objected to this response. Less than one hour later,

the jury returned a verdict finding Mr. Dunleavy guilty of second degree burglary and

third degree theft but not guilty of second degree assault.

       At sentencing, Dunleavy wrote a letter to the court that his counsel read into the

record. Through this letter, Dunleavy asked for a sentencing alternative rather than the

State’s sentencing recommendation of three to five years’ confinement. The State

represented that Dunleavy had an offender score of 9+. The State did not offer any

evidence of Dunleavy’s prior convictions. Defense counsel did not contest the State’s

representation of Dunleavy’s offender score. The trial court sentenced Dunleavy based

on the State’s representation that Dunleavy had an offender score of 9+.

       Dunleavy timely appealed.

                                         ANALYSIS

       TRIAL COURT’S RESPONSE TO JURY QUESTIONS NOT MANIFEST ERROR

       Dunleavy first argues the trial court violated his constitutional right to a jury trial

by improperly coercing the jury to reach a verdict.

       Dunleavy did not preserve this claim of error by objecting below to the trial court’s

response to the jury’s questions. Nevertheless, RAP 2.5(a)(3) permits an appellate court

to review an unpreserved claim of error if it involves a “manifest error affecting a


                                               4
No. 34762-1-III
State v. Dunleavy


constitutional right.” Our RAP 2.5(a)(3) analysis involves a two-prong inquiry. First, the

alleged error must truly be of constitutional magnitude. State v. Kalebaugh, 183 Wn.2d

578, 583, 355 P.3d 253 (2015). Second, the asserted error must be manifest. Id.

       1.     Constitutional magnitude

       Dunleavy meets the first part of the RAP 2.5(a)(3) test. The state and federal

constitutions protect an accused person’s right to a jury trial. U.S. CONST. amends. VI,

XIV; WASH. CONST. art. I, §§ 21, 22. Among other protections, these provisions secure

“the right to have each juror reach his verdict uninfluenced by factors outside the

evidence, the court’s proper instructions, and the arguments of counsel.” State v.

Boogaard, 90 Wn.2d 733, 736, 585 P.2d 789 (1978). This right prohibits a judge from

coercing a criminal jury to reach a verdict. Id. at 736-37. Dunleavy’s claim that the trial

court improperly coerced the jury to reach a verdict therefore is truly of constitutional

magnitude. See also State v. Ford, 171 Wn.2d 185, 188, 250 P.3d 97 (2011).

       2.     Manifest error

       Dunleavy fails to meet the second part of the RAP 2.5(a)(3) test. We construe

“manifest” in a manner that strikes a careful policy balance between requiring objections

to be raised so trial courts can correct errors and permitting review of errors that actually

resulted in serious injustices to the accused. Kalebaugh, 183 Wn.2d at 583.


                                              5
No. 34762-1-III
State v. Dunleavy


“[M]anifestness ‘requires a showing of actual prejudice.’” Id. at 584 (internal quotation

marks omitted) (quoting State v. O’Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009)). “‘To

demonstrate actual prejudice, there must be a plausible showing . . . that the asserted error

had practical and identifiable consequences in the trial of the case.’” Id. (internal

quotation marks omitted) (quoting O’Hara, 167 Wn.2d at 99). In addition, such

consequences “‘should have been reasonably obvious to the trial court,’ and the facts

necessary to adjudicate the claimed error must be in the record.” Id. at 588 (quoting

O’Hara, 167 Wn.2d at 108, 99). By limiting our review of unpreserved constitutional

errors to errors that are obvious, adjudicable from the record, and resulted in actual

prejudice, we strike the proper policy balance.

       Here, after only two and one-half hours of deliberating, the jury asked whether the

Walla Walla County jail policies are legally binding, whether they are considered law,

and what if they could not reach a unanimous verdict on one count. The trial court, after

seeking input from the State and Dunleavy, responded in writing, “You are to review the

evidence, the exhibits, and the instructions, and continue to deliberate in order to reach a

verdict.” CP at 5. This response is not so obviously coercive as to constitute manifest

error. Because the unpreserved claim of error was not obvious, it is not reviewable under

RAP 2.5(a)(3).


                                              6
No. 34762-1-III
State v. Dunleavy


       SUFFICIENCY OF THE EVIDENCE

       Dunleavy next challenges the sufficiency of the evidence to sustain his conviction

for second degree burglary. He argues a jail cell is not a separate building and, even if it

is, he had an implied license to enter LaMunyon’s cell. We disagree with both arguments.

       Standard of review

       In a criminal case, the State must provide sufficient evidence to prove each

element of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). In evaluating the sufficiency of the

evidence, the court must determine whether, when viewing the evidence in the light most

favorable to the State, any rational trier of fact could have found guilt beyond a

reasonable doubt. State v. Pirtle, 127 Wn.2d 628, 643, 904 P.2d 245 (1995). A claim of

insufficiency of the evidence admits the truth of the State’s evidence and all reasonable

inferences from that evidence. State v. Kintz, 169 Wn.2d 537, 551, 238 P.3d 470 (2010).

Reviewing courts also must defer to the trier of fact “on issues of conflicting testimony,

credibility of witnesses, and the persuasiveness of the evidence.” State v. Thomas, 150

Wn.2d 821, 874-75, 83 P.3d 970 (2004). This court does not reweigh the evidence and

substitute its judgment for that of the jury. State v. Green, 94 Wn.2d 216, 221, 616 P.2d




                                              7
No. 34762-1-III
State v. Dunleavy


628 (1980). For sufficiency of evidence claims, circumstantial and direct evidence carry

equal weight. State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004).

       Rules of statutory interpretation

       Dunleavy’s argument also requires interpretation of a definitional statute related to

burglary. Statutory interpretation is a question of law reviewed de novo. State v. Evans,

177 Wn.2d 186, 191, 298 P.3d 724 (2013). “The purpose of statutory interpretation is ‘to

determine and give effect to the intent of the legislature.’” Id. at 192 (quoting State v.

Sweany, 174 Wn.2d 909, 914, 281 P.3d 305 (2012)). “When possible, we derive

legislative intent solely from the plain language enacted by the legislature, considering the

text of the provision in question, the context of the statute in which the provision is found,

related provisions, and the statutory scheme as a whole.” Id. “Plain language that is not

ambiguous does not require construction.” Id. “If more than one interpretation of the

plain language is reasonable, the statute is ambiguous and we must then engage in

statutory construction.” Id. at 192-93. “We may then look to legislative history for

assistance in discerning legislative intent.” Id. at 193. “If a penal statute is ambiguous

and thus subject to statutory construction, it will be ‘strictly construed’ in favor of the

defendant.” Id. (quoting State v. Hornaday, 105 Wn.2d 120, 127, 713 P.2d 71 (1986)).

“This means that we will interpret an ambiguous penal statute adversely to the defendant


                                               8
No. 34762-1-III
State v. Dunleavy


only if statutory construction ‘clearly establishes’ that the legislature intended such an

interpretation.” Evans, 177 Wn.2d at 193 (quoting City of Seattle v. Winebrenner, 167

Wn.2d 451, 462, 219 P.3d 686 (2009)).

       1.     Jail cells are separate buildings for purposes of proving burglary

       “A person is guilty of burglary in the second degree if, with intent to commit a

crime against a person or property therein, he or she enters or remains unlawfully in a

building other than a vehicle or a dwelling.” RCW 9A.52.030(1). RCW 9A.04.110(5)

defines “building” in relevant part as

       any . . . structure used for lodging of persons . . . ; each unit of a building
       consisting of two or more units separately secured or occupied is a separate
       building.

(Emphasis added.)

       Dunleavy does not dispute that a jail is a building used for lodging of persons,

specifically inmates. The evidence at trial established that each cell is secured at night

and an inmate can secure his cell from others. The evidence at trial further established

that each cell is separately occupied by two inmates. We discern no ambiguity. A jail

cell is a separate building for purposes of proving burglary.

       Dunleavy cites State v. Thomson, 71 Wn. App. 634, 861 P.2d 492 (1993) in

support of his argument that a jail cell is not a “unit of a building . . . separately secured


                                               9
No. 34762-1-III
State v. Dunleavy


or occupied.” In Thomson, the victim rented a house and invited the defendant to stay in

a guest bedroom. Id. at 636. Sometime during the night, the guest broke into the victim’s

bedroom and raped her. Id. The Thomson court considered whether the defendant

satisfied the first degree rape statute by feloniously entering a building. Id. at 637. There,

the State argued that the phrase “‘a building consisting of two or more units separately

secured or occupied’” meant “any building in which at least one room happens to be

separately locked or occupied at the time of a crime.” Id. at 642. In contrast, the

defendant argued that the phrase meant “a building occupied or intended to be occupied

by different tenants separately, for example, a hotel, apartment house, or rooming house.”

Id. The Thomson court, without employing a plain meaning analysis, concluded that the

phrase was ambiguous and examined the history of the statute.1 Id. at 643-44.




       1
         Thomson quotes the drafter’s commentary that states, “‘multi-unit buildings is
consistent with a similar provision in the definition of “dwelling house” . . . see also,
State v. Rio, 38 Wn.2d 446, 450, 230 P.2d 308, cert. denied, 342[ ] U.S. 867 [230 P.2d
308] (1951).” Thomson, 71 Wn. App. at 644 (some emphasis omitted).
        In Rio, the Washington Supreme Court upheld a burglary conviction where the
defendant, a worker who resided in his employer’s house, entered the bedroom of his
employer and committed a felony against his employer’s wife. 38 Wn.2d at 450-51.
Thomson, contrary to Rio, holds that a burglary does not occur when a houseguest breaks
into his host’s bedroom and commits a felony against his host. Thomson, 71 Wn. App. at
646. But because we need not explicitly overrule Thomson to decide this case, the
observations noted above are dicta.

                                             10
No. 34762-1-III
State v. Dunleavy


       We disagree that the italicized phrase is ambiguous. The plain meaning of the

phrase lends itself to only one interpretation. The phrase unambiguously means any

multi-unit building in which the units are separately secured or occupied. There is no

requirement, as suggested by the State in Thomson, that the unit be secured or occupied at

the time of the crime. Nor, as suggested by the defendant in Thomson, is there any word

in the phrase that limits its meaning to multi-unit buildings with tenants. If the legislature

intended such meanings it could have said so. It did not. Because the phrase is

unambiguous, resort to legislative history would be error. Evans, 177 Wn.2d at 192-93.

       We conclude that a jail is a building that consists of two or more units separately

secured or occupied. Accordingly, by application of RCW 9A.04.110(5), each unit or cell

is a separate building.2

              2. No implied license for unlawful entry

       Dunleavy contends he did not commit burglary when he entered LaMunyon’s cell

because his entry was lawful from an implied license to enter the cell.

       “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.” Former


       2
         Dunleavy notes that Thomson placed great emphasis on the privacy interests of
the occupants in its analysis. Because our analysis rests on the plain language of the
statutory definition, we view the privacy interests of the occupants as irrelevant.

                                             11
No. 34762-1-III
State v. Dunleavy


RCW 9A.52.010(5) (2011). Dunleavy argues the evidence established that inmates go in

and out of each other’s cells frequently and this custom or practice supported his

reasonable belief that he had an implied license to enter other inmates’ cells. See State v.

C.B., 195 Wn. App. 528, 538-39, 380 P.3d 626 (2016); Singleton v. Jackson, 85 Wn.

App. 835, 839, 935 P.2d 644 (1997).

       His argument is contrary to the standard that limits our review of factual issues.

LaMunyon testified he did not give Dunleavy permission to enter his cell. Sergeant

Robertson testified that inmates are told when they are first booked into jail that they may

not enter another inmate’s jail cell. Inmates are subject to punishment for breaking these

rules, including criminal charges. Dunleavy did elicit testimony that inmates often go

into the cells of other inmates. But the standard that limits our review contemplates

conflicting evidence and requires us to resolve such conflicts in favor of the State. Pirtle,

127 Wn.2d at 643. A rational jury could find beyond a reasonable doubt that Dunleavy

entered LaMunyon’s cell unlawfully.

       OFFENDER SCORE CALCULATION

       Dunleavy contends the State did not meet its burden in proving his prior

convictions to calculate his offender score at sentencing. The State argues in response




                                             12
No. 34762-1-III
State v. Dunleavy


that it did not need to provide evidence of his prior convictions because he waived this

challenge by affirmatively acknowledging his convictions. We agree with Dunleavy.

       Sentencing errors resulting in unlawful sentences may be raised for the first time

on appeal. State v. Bahl, 164 Wn.2d 739, 744, 193 P.3d 678 (2008). Offender score

calculations are reviewed de novo. State v. Moeurn, 170 Wn.2d 169, 172, 240 P.3d 1158

(2010).

       The State has the burden of establishing a defendant’s prior criminal history by a

preponderance of the evidence to determine his or her offender score at sentencing. State

v. Ford, 137 Wn.2d 472, 479-80, 973 P.2d 452 (1999). An unsupported statement of

prior criminal history is insufficient to satisfy the State’s burden of proof. State v.

Hunley, 175 Wn.2d 901, 910, 287 P.3d 584 (2012). The State is relieved of this burden if

the defendant affirmatively acknowledges his or her prior criminal history; the

defendant’s mere failure to object is insufficient. Id. at 912.

       The State argues Dunleavy has waived this argument because he is not claiming

his offender score was incorrectly calculated but instead just that the State did not meet its

burden of proof. The State relies on In re Personal Restraint of Goodwin, 146 Wn.2d

861, 50 P.3d 618 (2002). The Goodwin court discussed various ways defendants can




                                              13
No. 34762-1-III
State v. Dunleavy


waive a claimed error in offender score calculations, including acknowledging facts, even

erroneous facts, underlying an offender score calculation.

       Dunleavy’s statements at sentencing do not constitute an acknowledgement of

facts. The State points to Dunleavy’s letter to the trial court. In that letter, Dunleavy

asked the trial court to impose a drug offender sentencing alternative, and mentioned “the

prosecutor’s recommendation” of three to five years. RP at 191. Dunleavy’s mention of

the prosecutor’s recommendation does not constitute an admission of facts.

       The State also points to Dunleavy’s statement to the trial court during sentencing.

The trial court questioned Dunleavy about his ability to pay legal financial obligations. In

response, Dunleavy stated that he was paying legal financial obligations on “[a]t least six”

prior offenses. RP at 201. Although this statement is an admission of prior offenses, it is

not an admission of sufficient facts to establish an offender score of 9+.

       The State complains that Dunleavy’s challenge to his offender score is a waste of

resources. This might be true. But the State can safeguard unnecessary challenges by

obtaining the defendant’s stipulation to an offender score, by obtaining a clear

acknowledgement by the defendant of his offender score, or by presenting proof of the




                                             14
No. 34762-1-III
State v. Dunleavy


defendant's prior convictions. We remand so that the State can pursue one of these three

options. 3

       Affirmed in part; remanded for resentencing.




                                                                                I   A.(.
                                                  Lawrence-Berrey, A.CJ.

 WE CONCUR:




G?-o
 Pennell,J.
                          _Q_     ·@=


        3  Dunleavy requests that we deny the State an award of appellate costs in the event
. the State substantially prevails. We deem the State the substantially prevailing party. If
  the State seeks appellate costs, we defer the award of appellate costs to our commissioner
  in accordance with RAP 14.2.

                                             15
