                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                        November 27, 2018

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                             No. 50543-6-II

                                 Respondent,

           v.                                                   PUBLISHED OPINION

    NATHANIEL JOHN HALL,

                                 Appellant.


         MAXA, C.J. – Nathaniel Hall appeals his residential burglary conviction. He argues that

the evidence was insufficient to prove that the unoccupied house that he burglarized was a

“dwelling,” as required to convict for residential burglary.

         We hold that the State presented sufficient evidence to establish that the house was a

dwelling even though its elderly owner did not live there. Accordingly, we affirm Hall’s

conviction.1

                                               FACTS

         In October 2014, Lloyd Fredson moved his elderly mother Myrtle Fredson from her

home in Puyallup to Port Orchard to live near him because she had been having health problems.

Myrtle2 had lived in the house since 1986, but by 2014 had difficulty managing her affairs.




1
 The jury also convicted Hall of third degree theft and making or having burglary tools. He
does not challenge these convictions in this appeal.
2
    We use the Fredsons’ first names to avoid confusion and intend no disrespect.
No. 50543-6-II


       When Myrtle went to live in Port Orchard, she left furniture throughout the house, beds

in each bedroom, appliances, clothes, and personal belongings in the Puyallup home. However,

nobody lived in the house. After Myrtle went to live in Port Orchard, Lloyd and Myrtle tried to

visit the Puyallup house once or twice a week.

       Over time, unknown people broke windows and broke down doors in order to get inside

the house. Lloyd eventually boarded up the windows and secured the broken front door to keep

people out. He also posted no trespassing and warning signs throughout the property.

       On February 2, 2016, Lloyd and Myrtle went to her home to check on it. Lloyd

suspected that someone was inside the house and called the sheriff. Officers responded and

arrested Hall as he came out of the house. Hall was carrying a backpack that contained items

that Lloyd and Myrtle identified as possessions that she had left in the house.

       The State charged Hall with residential burglary, third degree theft, and making or having

burglary tools. A jury found him guilty of all three counts. Hall appeals his residential burglary

conviction.

                                            ANALYSIS

A.     STANDARD OF REVIEW

       The test for determining sufficiency of the evidence is whether, after 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. Homan, 181 Wn.2d 102, 105, 330 P.3d 182 (2014). In a

sufficiency of the evidence claim, the defendant admits the truth of the State’s evidence and all

reasonable inferences drawn from that evidence. Id. at 106. Credibility determinations are made

by the trier of fact and are not subject to review. State v. Miller, 179 Wn. App. 91, 105, 316 P.3d

1143 (2014). Circumstantial and direct evidence are equally reliable. Id.




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No. 50543-6-II


B.     SUFFICIENCY OF EVIDENCE – “DWELLING”

       Hall argues that the evidence was insufficient for a jury to find that Myrtle’s house was a

“dwelling” at the time of his burglary. We disagree.

       1.    Legal Principles

       Under RCW 9A.52.025, a person commits residential burglary “if, with intent to commit

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

dwelling.” RCW 9A.04.110(7) defines “dwelling” as “any building or structure . . . which is

used or ordinarily used by a person for lodging.”

       Whether a building is a dwelling “turns on all relevant factors and is generally a matter

for the jury to decide.” State v. McDonald, 123 Wn. App. 85, 91, 96 P.3d 468 (2004). As a

result, whether a building is a dwelling cannot always be decided as a matter of law. State v.

McPherson, 186 Wn. App. 114, 118, 344 P.3d 1283 (2015).

       No published Washington case has discussed in detail the factors relevant to determining

whether an unoccupied house constitutes a dwelling. In McDonald, a house’s owners had not

lived there for two or three months while they were remodeling it. 123 Wn. App. at 87. This

court in a footnote identified several relevant factors stated in cases from other jurisdictions and

a secondary source. These factors were (1) whether the occupant deemed the house his or her

abode and treated it as such, (2) whether the house was furnished and rented out periodically, (3)

whether the occupant intended to return, (4) whether the house usually was occupied by someone

lodging there at night, (5) whether the house was maintained as a dwelling, and (6) how long the

house had been vacant. Id. at 91 n.18. But the court did not expressly adopt these factors nor

apply them in summarily holding that the evidence in that case presented a jury question. Id. at

91.




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No. 50543-6-II


        2.   Analysis

        Here, Hall points to several factors suggesting that Myrtle’s house did not constitute a

dwelling at the time of the burglary. Nobody had lived in the house for over 15 months. All the

windows had been boarded up and the broken front door had been secured. And there was no

evidence that Lloyd or Myrtle planned for Myrtle to resume living in the house or for anyone

else to live in the house.3

        However, other factors support a finding that the house constituted a dwelling even

through it had been unoccupied for some time. First, Myrtle had used the house for lodging for

almost 30 years. There is no indication that the house had been used for anything other than

lodging during that time. As a result, at least before Myrtle ceased living there, the house

ordinarily had been used for lodging. And the nature and character of the house and its contents

had not changed even though it was unoccupied.

        Second, the house remained fully furnished. There was furniture in every room,

including beds in all the bedrooms. Appliances were present. With regard to furnishings, the

house was immediately available to be used for lodging.

        Third, Myrtle left clothing and personal belongings in the house. In fact, Lloyd admitted

that his mother was somewhat of a hoarder and that a large number of her possessions remained

in the house. Myrtle may not have been living in the house, but she had not formally moved out.

        Fourth, although Myrtle did not testify, a reasonable inference from the evidence is that

she continued to regard the house as her abode. She had not abandoned her house. Myrtle,




3
  The State claims that the Fredsons’ plan was to return Myrtle to the Puyallup house. However,
the evidence does not support this claim even viewed in the light most favorable to the State.
Although the initial hope may have been to return Myrtle to the house, nothing in the record
shows that she had an intention to return in 2016 when Hall committed the burglary.


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No. 50543-6-II


along with Lloyd, visited the house once or twice a week. They took steps to prevent people

from damaging or entering the house so that the house would remain habitable.

       Finally, Myrtle did not “voluntarily” cease to occupy her house. She essentially was

forced to leave because of her age-related health problems. Although there is no evidence that

there was a plan for Myrtle to return, a reasonable inference from the evidence is that she would

return if she was able to take care of herself.

       Because there are competing factors, we hold that there was sufficient evidence for a

rational jury to determine that the house Hall burglarized was a dwelling. The jury properly was

allowed to consider all the relevant factors in making this determination.

                                           CONCLUSION

       We affirm Hall’s residential burglary conviction.



                                                      MAXA, C.J.


 We concur:



 LEE, J.



 MELNICK, J.




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