                                                                           FILED 

                                                                         MAY 21,2013 

                                                               In the Office of the Clerk of Court 

                                                              WA State Court of Appeals, Division [II   





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


STATE OF WASHINGTON,                         )         No. 29785-3-111
                                             )
                     Respondent,             )
                                             )
             v.                              )
                                             )
GARY DWAYNE McCABE,                          )         UNPUBLISHED OPINION
                                             )
                    Appellant.               )

       BROWN, J. - Gary Dwayne McCabe appeals his residential burglary and

methamphetamine possession convictions. He contends the trial court erred by

declining his requested lesser included offense instruction and insufficient evidence

supports the crime date stated in his to-convict instruction. We affirm.

                                         FACTS

       On August 12, 2010, Dennis and Bette Miller left their house to get lunch. While

the Millers were gone, neighbor Eric Rogers saw a male walk around the side of the

house and load wooden boxes into a red Dodge Neon two or three times over the span

of about one and a half to two minutes. When the Millers returned, they found someone

had broken a rear basement window, entered the house, and removed items including

five wooden boxes holding a coin collection worth $27,340. On August 20,2010, law

enforcement stopped and arrested Mr. McCabe in a red Dodge Neon, finding a wooden
No. 29785-3-111
State v. McCabe

box and gold coins on the front passenger seat and a certificate of authenticity for two

silver coins in his breast pocket. Law enforcement then impounded the vehicle and

executed a search warrant for it five days later, finding methamphetamine and a stolen

laptop computer in the back seat area.

       The State charged Mr. McCabe with residential burglary, methamphetamine

possession, and third degree stolen property possession. The trial court declined his

request to instruct the jury on first degree criminal trespass as a lesser included offense

of residential burglary. Without objection, the trial court instructed the jury that to

convict him of methamphetamine possession, it must find he did so "on or about August

24,2010." Clerk's Papers (CP) at 124. The jury found Mr. McCabe guilty of residential

burglary and methamphetamine possession but acquitted him of third degree stolen

property possession. He appealed.

                                         ANALYSIS

                          A. Lesser Included Offense Instruction

       The issue is whether the trial court erred in declining Mr. McCabe's request to

instruct the jury on first degree criminal trespass as a lesser included offense of

residential burglary. He contends the ruling is erroneous because the court adopted an

incorrect view of the facts. We disagree.

       Where, as here, the trial court declines to give a requested jury instruction based

on its view of the facts, we review the decision for abuse of discretion. State v. Lucky,

128 Wn.2d 727,731,912 P.2d 483 (1996), overruled on other grounds by State v.

Berlin, 133 Wn.2d 541,544,947 P.2d 700 (1997). A trial court abuses its discretion if


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No. 29785-3-111
State v. McCabe

its decision is "manifestly unreasonable," based on "untenable grounds," or made for

"untenable reasons."1 State ex rei. Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775

(1971).

       A jury cannot convict a defendant of an uncharged offense. CONST. art. I, § 22

(amend. 10); State v. Ackles, 8 Wash. 462,464,36 P. 597 (1894). But a jury may

convict a defendant of a lesser offense necessarily included in a charged offense. RCW

10.61.006; Beck v. Alabama, 447 U.S. 625,634,100 S. Ct. 2382, 65 LEd. 2d 392

(1980). If an offense is lesser included, the trial court must instruct the jury on it when

either party requests. State v. Workman, 90 Wn.2d 443,447,584 P.2d 382 (1978);

State v. Mak, 105 Wn.2d 692,745,747,718 P.2d 407 (1986), overruled on other

grounds by State v. Hill, 123 Wn.2d 641,870 P.2d 313 (1994). An offense is lesser

included if it satisfies a legal prong and a factual prong. Workman, 90 Wn.2d at 447-48.

Under the legal prong, "each of the elements of the lesser offense must be a necessary

element of the offense charged." Id. Under the factual prong, "the evidence in the case

must support an inference that the lesser crime was committed." Id. at 448.

       The parties dispute solely the factual prong. A lesser offense satisfies the factual




       1 A decision is based on untenable grounds or made for untenable reasons if it
       rests on facts unsupported in the record or was reached by applying the wrong
       legal standard. A decision is manifestly unreasonable if the court, despite
       applying the correct legal standard to the supported facts, adopts a view that no
       reasonable person would take, and arrives at a decision outside the range of
       acceptable choices.
State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003) (citations omitted) (internal
quotation marks omitted).

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State v. McCabe

prong "[i]f the evidence would permit a jury to rationally find a defendant guilty of the

lesser offense and acquit him of the greater." State v. Warden, 133 Wn.2d 559, 563,

947 P.2d 708 (1997) (citing Beck, 447 U.S. at 635). But the evidence must do more

than merely cast doubt on the State's theory regarding the charged offense; instead, the

evidence must affirmatively establish the defendant's theory regarding the lesser

offense. State v. Fowler, 114 Wn.2d 59,67,785 P.2d 808 (1990), overruled on other

grounds by State v. Blair, 117 Wn.2d 479,816 P.2d 718 (1991). In other words, "the

evidence must raise an inference that only the lesser ... offense was committed to the

exclusion of the charged offense." State v. Fernandez-Medina, 141 Wn.2d 448,455,6

P.3d 1150 (2000). This analysis requires "view[ing] the supporting evidence in the light

most favorable to the party that requested the instruction." Id. at 455-56.

      A person commits residential burglary if he or she "enters or remains unlawfully

in a dwelling" and does so "with intent to commit a crime against a person or property

therein." RCW 9A.52.025(1). A dwelling is a "building" a person uses or ordinarily uses

for lodging. RCW 9A.04.110(7). In this context, the definition of "building" includes a

fenced area. RCW 9A.04.11 0(5). A person commits first degree criminal trespass if he

or she "knowingly enters or remains unlawfully in a building." RCW 9A.52.070(1). In

this context, the definition of "building" excludes a fenced area. State v. Brown, 50 Wn.

App. 873, 878, 751 P.2d 331 (1988), abrogated on other grounds by In re Pers.

Restraint of Heidari, 174 Wn.2d 288,274 P.3d 366 (2012).

       Mr. McCabe argues the evidence shows he committed solely first degree criminal

trespass to the exclusion of residential burglary because he merely remained in the


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No. 29785-3-111
State v. McCabe

fenced area and did not enter the house. But a person cannot commit first degree

criminal trespass by merely remaining in a fenced area. See id. As the notes and

comments to Mr. McCabe's own proposed instructions explain, the definition of

"building" for first degree criminal trespass excludes a fenced area. 11A WASHINGTON

PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 60.15 note on use & cmt.

at 20,60.16 note on use & cmt. at 21-22 (3d ed. 2008) (citing Brown, 50 Wn. App. 873).

Therefore, viewing the evidence in the light most favorable to Mr. McCabe, a jury could

not rationally find him guilty of first degree criminal trespass and acquit him of residential

burglary. It follows that the trial court did not abuse its discretion in deciding first degree

criminal trespass failed the factual prong here. In sum, we conclude the court did not

err in declining Mr. McCabe's requested lesser included offense instruction.

                                  B. Evidence Sufficiency

       The issue is whether sufficient evidence supports finding Mr. McCabe possessed

methamphetamine "on or about August 24,2010," the date the trial court included in the

to-convict instruction without objection. CP at 124. Mr. McCabe contends no evidence

supports this crime date.

       Evidence is sufficient to support a guilty finding if, '''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. Green, 94 Wn.2d

216,221,616 P.2d 628 (1980) (emphasis omitted) (quoting Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781,61 L. Ed. 2d 560 (1979)). A challenge to evidence




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No. 29785-3-111
State v. McCabe

sufficiency "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).

       The Uniform Controlled Substances Act provides, "It is unlawful for any person to

possess a controlled substa'nce ...." RCW 69.50.4013(1). While the date is usually

not an essential element of a crime, State v. DeBolt, 61 Wn. App. 58, 62, 808 P.2d 794

(1991), the State must prove otherwise unnecessary elements where, as here, the trial

court includes them in the to-convict instruction without objection, State v. Hickman, 135

Wn.2d 97, 102,954 P.2d 900 (1998); see also State v. Jensen, 125 Wn. App. 319, 325­

26,104 P.3d 717 (2005).

       The State had to prove Mr. McCabe possessed methamphetamine on or about

August 24, 2010. Mr. McCabe does not dispute whether he possessed

methamphetamine on August 20,2010. Viewing the evidence in the light most

favorable to the State, a rational jury could find beyond a reasonable doubt that this

date was on or about August 24, 2010. See State v. Hayes, 81 Wn. App. 425, 432-33,

914 P.2d 788 (1996) (concluding the "on or about" language allows the State to offer

evidence the defendant committed the crime anytime within the statute of limitations

period where, as here, the date is not an essential element of the crime and the

defendant raises no alibi at the trial court)?




        2 Mr. McCabe argues, for the first time on appeal, his incarceration on August
24, 2010 is an alibi and precludes the State from offering evidence he possessed
methamphetamine on August 20,2010. We reject his argument because he raised no
alibi at the trial court and the State consistently maintained he possessed
methamphetamine on August 20,2010. See RAP 2.5(a).

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No. 29785-3-111
State v. McCabe

       Mr. McCabe relies on State v. Mills, 80 Wn. App. 231, 907 P.2d 316 (1995) to

urge a different result. In Mills, law enforcement arrested the defendant for

methamphetamine possession, uncovered a motel room key, executed a search

warrant for the motel room, and there discovered more methamphetamine with a

handgun lying beside it. 'd. at 233. The trial court convicted the defendant of

methamphetamine possession and found he committed the crime while armed with a

firearm. 'd. Division Two of this court reversed the 'firearm enhancement, concluding

the defendant was not armed because the handgun was several miles away at the time

of arrest. 'd. at 237. The court rejected the State's request to uphold the firearm

enhancement under the "on or about" language, partly because no evidence showed

the defendant, the methamphetamine, and the handgun were ever present in the motel

room at the same time. 'd. at 234.

       Our case is unlike Mills. Here, Mr. McCabe was driving the vehicle immediately

before law enforcement stopped and arrested him on August 20, 2010. Because law

enforcement impounded the vehicle, executed a search warrant for it and discovered

methamphetamine inside it five days later, a rational jury could reasonably infer the

vehicle contained the methamphetamine at the time of arrest. Thus, the evidence

shows Mr. McCabe and the methamphetamine were both present in the vehicle at the

time of arrest. As noted, the time of arrest was on or about August 24, 2010. In sum,

sufficient evidence supports the crime date stated in the td-convict instruction.




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No. 29785-3-111
State v. McCabe

      Affirmed.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




                                                Brown, J.

WE CONCUR:




                                                Sid~a~




                                           8

