                                                                             FILED
                                                                           SEPT 1, 2016
                                                                  In the Office of the Clerk of Court
                                                                 WA State Court of Appeals, Division Ill

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

STATE OF WASHINGTON,                           )
                                               )         No. 32962-3-111
                     Respondent,               )
                                               )
       V.                                      )
                                               )
ANTHONY A. JOSEPH,                             )         PUBLISHED OPINION
                                               )
                     Appellant.                )

       KORSMO, J. -Anthony Joseph appeals his conviction for second degree criminal

trespass, arguing that the statute does not apply to a vehicle. In light of legislative

history, we conclude that the statute does apply to Mr. Joseph's conduct.

                                           FACTS

       Mr. Joseph was found asleep in an unlocked Chevy Blazer on a public street in

Ellensburg late on the night of October 4, 2014. An officer responding to a report of

vehicle prowling at the city's vehicle impound lot noticed Mr. Joseph sleeping in the

Blazer which was parked just outside the impound lot. Recognizing Mr. Joseph and

knowing both that he was homeless and did not own a vehicle, the officer knocked on a

window to awaken him.

       Mr. Joseph exited the vehicle and claimed to have the owner's permission to be

inside, but he was unable to name the owner. He then admitted to not having permission

and was arrested for vehicle prowling.
No. 32962-3-III
State v. Joseph
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       The prosecution filed charges of third degree assault and second degree vehicle          !   I
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prowling. The matter ultimately proceeded to jury trial. The prosecutor sought

instructions on first and second degree criminal trespass as lesser included offenses of the
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vehicle prowling charge. The trial court did instruct the jury, over defense objection, on
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second degree trespass. The prosecutor also asked the court to define the term
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"premises" for the jury, but did not submit a definitional instruction. The trial court did

not define "premises," but allowed the parties to argue to the jury whether a vehicle was

or was not a "premises."

       The jury found Mr. Joseph guilty of third degree assault, not guilty of vehicle

prowling, and guilty of second degree criminal trespass. He then timely appealed to this

court, challenging only the latter conviction.
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                                         ANALYSIS                                               II
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       This appeal raises a challenge solely to the trespass conviction. Mr. Joseph             i


contends that the statute does not apply to vehicles and that the trial court therefore erred
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in instructing the jury on the lesser included offense of second degree trespass.               I
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Specifically, Mr. Joseph's challenge argues that a vehicle is not a "premises" within the       !
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meaning of the trespass statute. This argument requires review of the history of the

statute and judicial interpretations placed on it.
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No. 32962-3-III
State v. Joseph


       Second degree criminal trespass is defined:

       A person is guilty of criminal trespass in the second degree if he or she
       knowingly enters or remains unlawfully in or upon premises of another
       under circumstances not constituting criminal trespass in the first degree.

RCW 9A.52.080(1) (emphasis added). The crime is a simple misdemeanor. RCW

9A.52.080(2). The crime of first degree criminal trespass applies to anyone who

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

       The critical definition at issue here is that of "premises." It "includes any

building, dwelling, structure used for commercial aquaculture, or any real property."

RCW 9A.52.010(6). Also important is the term "building," which is defined for the

criminal code as

       "Building," in addition to its ordinary meaning, includes any dwelling,
       fenced area, vehicle, railway car, cargo container, or any other structure
       used for lodging of persons or for carrying on business therein, or for the
       use, sale, or deposit of goods; each unit of a building consisting of two or     I


       more units separately secured or occupied is a separate building.                I
RCW 9A.04.l 10(5).                                                                      I
      Facially, this appears to be a very straight-forward problem. Second degree       I
trespass involves the unlawful intrusion into a "premises." "Premises" is defined to
                                                                                        II
include "building," and that latter term in turn includes "vehicle." Therefore, the     I


                              1
transitive property of equality tells us that "vehicle" equals "premises." Although
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       If a=b and b=c, then a=c. JEROME E. KAUFMANN & KAREN L. SCHWITTERS,
       I
INTERMEDIATE ALGEBRA 6 (2010).

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No. 32962-3-III
State v. Joseph


mathematics principles are immutable, many legal principles are not, particularly when

they conflict with competing legal doctrines.

       Mr. Joseph argues that the definition of "premises" is exclusive and does not

encompass "vehicles." He tries to draw support for this contention from some earlier

cases addressing an equal protection problem with the former first degree trespass statute

and the efforts made to fix it. While he properly points to the right cases, ultimately, they

do not aid his argument.

       The problem initially was identified in State v. Martell, 22 Wn. App. 415, 591

P.2d 789 (1979). The defendant was charged with second degree burglary after being

found inside a church building. The court also instructed the jury on the included offense

of first degree criminal trespass, but declined to give an instruction on second degree

criminal trespass requested by the defendant. Id. at 416-1 7. The defendant was

convicted of first degree trespass and appealed, arguing the conviction violated his right

to equal protection of the laws. Id. Division Two of the Court of Appeals agreed.

      The first degree criminal trespass statute at that time applied to anyone who

entered or remained unlawfully "in a building or on real property adjacent thereto or upon

real property which is fenced or otherwise enclosed in a manner designed to exclude

intruders." Id. at 417. 2 Second degree criminal trespass then, as now, applied to anyone



      2
          See LA ws OF 1975, 1st Ex. Sess., ch. 260, § 9A.52.070.

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No. 32962-3-III
State v. Joseph


who entered or remained unlawfully "in or upon premises of another." Id. 3 The word

"premises" was defined to mean "any building, dwelling, or any real property." Id. 4

       Implicitly relying on the criminal code definition of "building," the court pointed

out that both statutes punished trespass in a "building," and, therefore, the defendant's

equal protection rights were violated due to the difference in penalties resulting from the

charging decision. Id. at 417-18. As a remedy, the court reduced the conviction to

second degree criminal trespass since the parties agreed the elements of the two statutes

were identical. Id. at 419.

       The legislature responded as part of an omnibus bill amending portions of the

criminal code. See LA ws OF 1979, 1st Ex. Sess., ch. 244. The legislation omitted the

adjacent and fenced real property language from the first degree trespass statute and

added a provision to the second degree trespass statute excluding it from applying to

conduct within the scope of the first degree trespass statute. Id. at §§ 12, 13.

Unfortunately, neither the court in Martell nor the legislature expressly addressed the

definition of "building" in RCW 9A.08.l 10.

       The issue was back before the appellate courts in State v. Brown, 50 Wn. App.

873, 751 P.2d 331 (1988). 5 There the defendant was charged with second degree


       3
           See LA ws OF 1975, 1st Ex. Sess., ch. 260, § 9A.52.080.
       4
           See LAWS OF 1975, 1st Ex. Sess., ch. 260, § 9A.52.010(1).
       5
           Abrogated by 174 Wn.2d 288, 274 P.3d 366 (2012).

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No. 32962-3-III
State v. Joseph


burglary for entering into a fenced area behind a tire store that was used to store tires.

The jury convicted Brown of the lesser included offense of first degree trespass. Id. at

874-75. The issue on appeal was whether the fenced area constituted a "building" under

the first degree trespass statute. Id. at 875. Division One of the Court of Appeals noted

that despite the legislative efforts, "there is still confusion regarding what constitutes a

'building."' Id. at 876. The prosecutor relied on the criminal code's definition of

"building" set out in RCW 9A.04. l 10. Id.

       While noting that the criminal code's "building" definition had been expansively

applied in burglary prosecutions, the Brown court concluded that expansive definition did

not apply to the first degree trespass statute, citing to the 1979 bill analysis from the

House Judiciary Committee. Id. at 877 (citing House Judiciary Committee Bill Files 307,

at 5 (1979)). The bill analysis described the effects of its amendments as limiting the first

degree trespass statute to "building in its ordinary sense." Id.

       Turning to the facts before it, the Brown court noted that the "Legislature clearly

intended to exclude fenced areas from the definition of 'building' in the amended first

degree criminal trespass statute." 6 Id. at 878. Instead, fenced areas would be considered


       6
        The Senate had amended the legislation by striking the words "other than a
fenced area" from the House version of the bill. See H.B. 307, 46th Leg., Reg. Sess.
(Wash. 1979). Ironically, the Senate bill reports indicate that the effect of that change
was to include fenced areas within the scope of the first degree trespass statute. See
SENATE JUDICIARY COMM., ANALYSIS ON H.B. 307 AS OF APRIL 18, 1979, at 2, 46th
Leg., Reg. Sess. (Wash. 1979); SENATE JUDICIARY COMM., ANALYSIS ON H.B. 307 AS OF

                                              6
No. 32962-3-III
State v. Joseph


"premises" under the second degree trespass statute. Id. Accordingly, since Mr. Brown

had trespassed into a fenced area rather than a "building," the court reversed his first

degree trespass conviction and reduced it to second degree trespass. Id.

       Although Brown was able to resolve its case due to the apparent intent expressed

in the House bill analysis to exclude fenced areas from the first degree trespass statute,

this case is not as easily resolved. Unfortunately, the legislature did not include any

language that defined the word "building" for purposes of the trespass statute and did not

address the criminal code's definition of "building." Instead, the legislature appears to

have treated the word "building" as having its normal meaning of an enclosed structure 7

without enacting any language to express that view. However, merely excluding fenced

areas from the definition of building, while describing something a building is not, failed

to affirmatively describe what a building is supposed to be.

       Nonetheless, the legislative action does give us some clues whether we should

treat a "vehicle" as a "building" (and, thus, as a "premises"). The legislature did not

believe the criminal code definition of "building" applied to the first degree trespass



MARCH 1, 1979, at 2, 46th Leg., Reg. Sess. (Wash. 1979). Brown did not address the
Senate bill analysis.
       7
        In part, building is defined as "a constructed edifice designed to stand more or less
permanently, covering a space of land, usu. covered by a roof and more or less completely
enclosed by walls, and serving as a dwelling, storehouse, factory, shelter for animals, or
other useful structure - distinguished from structures not designed for occupancy (as
fences or monuments)." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 292 (1993).

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No. 32962-3-III
State v. Joseph


statute, although it did apply to the burglary provisions of the same chapter of the

criminal code. It did, as Brown observed, thereby apply a nontechnical definition of

"building" to the first degree trespass statute. Further support for that view comes from

the acknowledged fact that the 1979 amendments were enacted in order to avoid the

equal protection problem identified by Martell. See Brown, 50 Wn. App. at 877-78

(discussing House bill analysis). If the broad definition of "building" applicable to the

rest of the criminal code did apply to the first degree trespass statute, the two trespass

statutes would remain coextensive and the problem would remain unsolved. 8 The

nonadoption of a technical definition appears to indicate legislative satisfaction with use

of the ordinary meaning of the term in the first degree trespass statute.

       Accordingly, we conclude, as did Brown, that the legislature intended the term

"building" in the first degree trespass statute to have its ordinary meaning of a

constructed edifice designed for occupancy. 9 It also appears that the term "premises"



       8
         The exclusion of the fenced area language from the 197 5 first degree trespass
statute did not remove the fenced area language from the criminal code definition of
building.
       9
         One obvious problem with adopting this definition is that it appears that first
degree criminal trespass, having a much narrower definition of "building" than that used
in the burglary statute, is unlikely to satisfy the legal prong of our test for lesser included
offenses because it is not necessarily established by proof of the greater crime. See State
v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978) and its progeny. But see State
v. Mounsey, 31 Wn. App. 511, 643 P.2d 892 (1982) (applying criminal code definition of
"building" to first degree criminal trespass and finding it to be an included offense of
burglary).

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No. 32962-3-111
State v. Joseph


used in the second degree trespass statute is intended as a broad, catch-all provision since

the 1979 amendment only excludes the narrow, ordinary "building" from the second

degree trespass statute. Accord State v. Brittain, 38 Wn. App. 740, 746, 689 P.2d 1095

(1984) (second degree trespass applies to all situations other than entry into a building).

This, too, is consistent with the broad definition of "building" found in RCW 9A.04. l l 0.

Consistent with that definition, we therefore hold that a "vehicle" is a "premises" for

purposes of the second degree criminal trespass statute. 10

       The trial court correctly instructed the jury on the included offense of second

degree criminal trespass. The evidence supported the jury's verdict. The conviction is

affirmed.

       Affirmed.




WE CONCUR:




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       10
         See State v. Shelby, 61 Wn. App. 214,220, 811 P.2d 682 (1991) (while
discussing equal protection argument, court states without analysis that second degree
criminal trespass does not apply to vehicles).

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