                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                         September 13, 2016



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                 No. 47683-5-II

                                Respondent,

         v.

 RICHARD RAY KASS,                                             UNPUBLISHED OPINION

                                Appellant.

       WORSWICK, J. — Kass appeals his conviction of residential burglary, arguing that (1) the

trial court erred by instructing the jury that it could infer Kass acted with the intent to commit a

crime if he entered or remained in the building unlawfully, (2) the trial court erred by failing to

enter written findings of fact and conclusions of law following a CrR 3.5 hearing, (3) the State

failed to present sufficient evidence to support its calculation of Kass’s offender score, and (4)

the judgment and sentence contains a scrivener’s error misstating the date of the jury verdict.

Because the State presented sufficient evidence to support a permissive inference instruction and

the trial court’s failure to enter written CrR 3.5 findings was harmless, we affirm Kass’s

conviction. But because the State failed to prove Kass’s criminal history and because the

judgement and sentence contains a scrivener’s error, we vacate Kass’s sentence and remand for

resentencing.
No. 47683-5-II



                                              FACTS

         On the evening of February 8, 2014, Douglas Knipe arrived at his unoccupied house1 to

find that someone had broken open the back door to the garage, ransacked the house, and taken

Knipe’s belongings. Additionally, Knipe noticed that someone had kicked planks out of a fence

bordering his backyard and a nearby Safeway parking lot. Knipe nailed the damaged door shut

and left for the evening with the intention of returning to the house and filing a police report the

following day.

         The following day, Knipe noticed a truck idling in the Safeway parking lot near the

broken fence adjacent to his backyard. Knipe then drove to the house and discovered that

someone had broken open the same back door that he had nailed shut the night before. Knipe

retrieved his handgun and started searching the house. During his search, Knipe saw Kass enter

the house through a back sliding door and turn to the left in the direction of two duffel bags.2

Knipe held Kass at gunpoint and called 911. At some point, Kass ran back out the sliding door,

across the backyard, and through the damaged fence. Kass and an unidentified driver then drove

away in the same truck that Knipe had seen idling near the fence.

         Deputy Eric Swenson responded and observed multiple sets of foot tracks between the

sliding door and the damaged portion of the fence, where Knipe described seeing the truck.




1
 Knipe was temporarily living in a nearby apartment, but he kept most of his belongings at the
house.
2
    The back sliding door is not the same door that was previously broken open.


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No. 47683-5-II



After Deputy Swenson left, Knipe noticed two unfamiliar duffel bags filled with his belongings

to the left of the sliding door.

          Several days later, police identified Kass as a suspect and went to his residence where

they placed him under arrest, advised him of his Miranda3 rights, and questioned him. Kass told

the officers that he went to Knipe’s house because he was interested in buying a motorcycle

located in the backyard.4 Kass said that he had followed a “clear and worn trail into the

backyard of the house.” 3A Verbatim Report of Proceedings (VRP) at 310. Kass then said that

he knocked on the back sliding door, but there was no response. Kass explained that he was

“looking around by the motorcycle when a guy came out the backdoor [sic] at him with a gun.”

3A VRP at 310. Kass then admitted that the man told him, “Get on the ground” and “[s]how me

your hands,” but that Kass instead fled, and ran back to his truck. 3A VRP at 310. Kass told the

officers he did not take anything from the residence and he never went inside the house.

          The State charged Kass with one count of residential burglary.5 Prior to trial, the court

held a CrR 3.5 hearing to determine the admissibility of Kass’s statements. At the conclusion of

the CrR 3.5 hearing, the trial court orally ruled that Kass’s statements were admissible because

the uncontroverted evidence showed that Kass had agreed to speak with the officers after they




3
    Miranda v. Arizona, 348 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
4
    Knipe kept a motorcycle in his backyard, but had not posted it for sale.
5
    RCW 9A.52.025.

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No. 47683-5-II



properly administered Miranda, and that the officers had made no promises or threats. However,

the trial court did not enter any written findings of fact and conclusions of law.

          At trial, witnesses testified as stated above. In addition, Deputy Swenson testified that he

did not see the duffel bags by the back door and that it looked like transients were living in

Knipe’s house. After the close of evidence and over Kass’s objection, the trial court gave a

permissive inference instruction allowing the jury to infer that Kass acted with the intent to

commit a crime based on Kass’s unlawful entry into Knipe’s house. The jury found Kass guilty

of one count of residential burglary.

          At sentencing, the State calculated Kass’s offender score as an 11, but presented no

evidence of Kass’s prior convictions. Kass neither objected to the State’s calculation of his

offender score nor stipulated to any prior convictions. Based on an offender score of 11, the trial

court sentenced Kass to a standard range sentence of 73 months in prison.

          Kass appeals.

                                              ANALYSIS

            I. SUFFICIENT EVIDENCE SUPPORTED A PERMISSIVE INFERENCE INSTRUCTION

          Here, because Kass was charged with residential burglary, the State was required to

prove that Kass entered or remained unlawfully in Knipe’s house “with intent to commit a crime

against a person or property therein.” RCW 9A.52.025. Kass first argues that the trial court

violated his right to due process6 by giving the following permissive inference jury instruction:



6
    See U.S. CONST. amend. IV; CONST. art. I, § 7; CONST. art. 1, § 3.



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No. 47683-5-II



       A person who enters or remains unlawfully in a building may be inferred to have
       acted with intent to commit a crime against a person or property therein. This
       inference is not binding upon you and it is for you to determine what weight, if any,
       such inference is to be given.7

Clerk’s Papers at 34. We disagree.

       We review a due process challenge to jury instructions de novo. State v. Sandoval, 123

Wn. App. 1, 4, 94 P.3d 323 (2004). Due process requires the State to prove every element of a

crime beyond a reasonable doubt. State v. Cantu, 156 Wn.2d 819, 829, 132 P.3d 725 (2006).

The State can prove elements of a crime through direct or circumstantial evidence. State v. J.P.,

130 Wn. App. 887, 893, 125 P.3d 215 (2005). The State may also use inferences to assist it in

meeting its burden of proof. Cantu, 156 Wn.2d at 826.

       A permissive inference instruction permits, but does not require, a jury to find a

presumed fact from a proven fact. 156 Wn.2d at 822. Although presumptions and inferences are

generally not favored in criminal law, the legislature has allowed for a permissible inference of

criminal intent in burglary prosecutions. RCW 9A.52.040. And our Supreme Court has

approved the permissive inference of intent to commit a crime “‘whenever the evidence shows a

person enters or remains unlawfully in a building.’” 156 Wn.2d at 826 (quoting State v. Grimes,

92 Wn. App. 973, 980 n.2, 966 P.2d 394 (1998)). However, the State is still required to persuade

the jury that the inference follows from the proven facts. Sandoval, 123 Wn. App. at 5.

Criminal intent may be inferred when the defendant’s surrounding conduct and the surrounding




7
 The language of this instruction is identical to 11A Washington Practice: Washington Pattern
Jury Instructions: Criminal 60.05 (3d ed. 2008).

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No. 47683-5-II



facts “plainly indicate such an intent as a matter of logical probability.” State v. Cordero, 170

Wn. App. 351, 368, 284 P.3d 773 (2012).

       We evaluate the propriety of a permissive inference instruction on a case by case basis,

considering whether the State’s evidence supported the inference. Sandoval, 123 Wn. App. at 4.

The State’s burden to support a permissive inference instruction depends on the amount of proof

offered to prove the element. See State v. Deal, 128 Wn.2d 693, 699-700, 911 P.2d 996 (1996).

Our Supreme Court explained, “‘[W]hen permissive inferences are only part of the State’s proof

supporting an element [of a crime] and not the sole and sufficient proof of such element, due

process is not offended if the prosecution shows that the inference more likely than not flows

from the proven fact.’” Cantu, 156 Wn.2d at 826 (emphasis added) (internal quotation marks

omitted) (quoting Deal, 128 Wn.2d at 700). However, when the inference is the “sole and

sufficient” proof of an element, due process may require the prosecution to show the presumed

fact flows beyond a reasonable doubt from the proven fact. Deal, 128 Wn.2d at 700 n.4.

       Kass first argues that we should hold that the State was required to prove that the inferred

fact flowed from the proved fact “beyond a reasonable doubt” because the inference was the sole

and sufficient proof of his intent to commit a crime inside Knipe’s house. We disagree and hold

that the State was required to prove that the inferred fact “more likely than not” flowed from the

proven fact because, contrary to Kass’s assertions, the permissive inference was only part of the

State’s proof supporting the elemental fact of Kass’s intent, rather than the “sole and sufficient

proof.” See Cantu, 156 Wn.2d at 826.




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No. 47683-5-II



       Kass argues that the inference was the sole and sufficient proof of his intent for a number

of reasons, including: he told the police that he was interested in a motorcycle, and that there was

a motorcycle in the back yard; the house looked like it had been occupied by transients and Kass

was not a transient; Kass was cooperative with police; the two duffel bags were not connected to

Kass; and Deputy Swenson did not see the two duffel bags.

       But the State presented considerable other evidence that Kass intended to commit a crime

against Knipe’s property when he entered Knipe’s house. First, immediately before

encountering Kass, Knipe discovered that someone had broken open the same back door to the

garage that Knipe had nailed shut the night before. Second, Kass had a truck idling, with a

driver at the ready, near the damaged portion of Knipe’s fence. Third, Kass entered the house

through a sliding door from Knipe’s backyard, and started to turn to the left in the direction of

two duffel bags filled with Knipe’s belongings. Fourth, there were multiple foot tracks between

the sliding door and the damaged portion of Knipe’s fence. Fifth, when Knipe called 911 while

holding Kass at gunpoint, Kass fled the scene. Because the permissive inference was only part

of the State’s proof supporting Kass’s intent, we apply the “more likely than not” standard.

       Kass argues that even applying the less stringent “‘more likely than not’” standard, the

permissive inference instruction nonetheless violated his due process right to have the State

prove every element of the offense. Br. of Appellant at 11. We disagree because, in light of the

State’s aforementioned evidence, the inference that Kass intended to commit a crime against

Knipe’s property flows “more likely than not” from the proven fact that Kass unlawfully entered




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No. 47683-5-II



Knipe’s house. See Cantu, 156 Wn.2d at 826. Kass’s conduct and the surrounding facts plainly

indicate Kass’s intent “as a matter of logical probability.” Cordero, 170 Wn. App. at 368.

       The permissive inference instruction did not violate Kass’s right to due process because

the inference was not the sole and sufficient proof of Kass’s intent, and the State presented

sufficient evidence to support the inference that Kass “more likely than not” intended to commit

a crime against Knipe’s property when he entered Knipe’s house. Considering the State’s

evidence, the trial court did not err by instructing the jury that it was permitted, but not required,

to accept an inference of Kass’s criminal intent based on Kass’s entry into Knipe’s house.

Accordingly, we affirm Kass’s conviction.

      II. FAILURE TO ENTER WRITTEN FINDINGS PURSUANT TO CrR 3.5(c) WAS HARMLESS

       Kass argues that the trial court erred by failing to enter written findings of fact and

conclusions of law following its CrR 3.5 ruling on the admissibility of Kass’s statements to law

enforcement as required by CrR 3.5(c). But Kass neither challenges the trial court’s oral

findings and conclusions nor argues that his statements were improperly admitted at trial. He

contends nonetheless that we should remand the matter to the trial court for entry of written

findings and conclusions. Because the court’s error was harmless, Kass’s claim fails.

       After a CrR 3.5 hearing, the trial court must state in writing “(1) the undisputed facts; (2)

the disputed facts; (3) conclusions as to the disputed facts; and (4) conclusion as to whether the

statement is admissible and the reasons therefore.” CrR 3.5(c). A trial court’s failure to enter

written findings and conclusions required under CrR 3.5(c) is an error, but the error is harmless if




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No. 47683-5-II



the court’s oral findings are sufficient to permit appellate review. State v. Cunningham, 116 Wn.

App. 219, 226, 65 P.3d 325 (2003).

       Here, the trial court failed to enter written findings of fact and conclusions of law

following its CrR 3.5 ruling on the admissibility of Kass’s statements made to arresting officers.

The trial court’s oral findings would be sufficient to permit appellate review, but Kass does not

raise any issues for us to review. He does not challenge the trial court’s oral findings and

conclusions of law, and he does not argue that his statements to law enforcement were

improperly admitted at trial. He simply argues that the trial court failed to enter written findings

and conclusions, and asserts that we must remand. So although the trial court should have

entered written findings of fact and conclusions of law following its oral ruling, the error was

harmless.

      III. FAILURE TO PROVE CRIMINAL HISTORY REQUIRES REMAND FOR RESENTENCING

       Kass argues, and the State concedes, that we should vacate Kass’s sentence and remand

for resentencing because the State failed to prove Kass’s criminal history by a preponderance of

the evidence for the purposes of calculating Kass’s offender score. We accept the State’s

concession and remand for resentencing.

       We review offender score calculations de novo. State v. Hernandez, 185 Wn. App. 680,

684, 342 P.3d 820 (2015), 185 Wn.2d 1002 (2016). The appropriate remedy for an improperly

calculated offender score is remand for resentencing, permitting the State to present evidence of

the defendant’s past convictions. See RCW 9.94A.530(2); State v. Cobos, 182 Wn.2d 12, 15-16,

338 P.3d 283 (2014).



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No. 47683-5-II



       The State bears the burden of proving a defendant’s criminal history by a preponderance

of the evidence for the purposes of calculating an offender score. State v. Hunley, 175 Wn.2d

901, 909-10, 287 P.3d 584 (2012). To satisfy its burden, “the State must produce evidence: it

cannot rely on presumptions or the defendant’s silence.” State v. Jones, 182 Wn.2d 1, 10, 338

P.3d 278 (2014); see also Hunley, 175 Wn.2d at 912 (holding that a sentencing court’s finding of

defendant’s offender score based solely on a prosecutor’s summary of criminal history and

defendant’s failure to object violated due process). The State may be relieved of its evidentiary

burden only if the defendant affirmatively acknowledges its proffered criminal history. 175

Wn.2d at 912.

       Here, the State submitted a declaration of criminal history summarizing Kass’s prior

convictions without providing any supporting evidence. Kass neither affirmatively

acknowledged the declaration as correct nor stipulated to having any priors. Based on the State’s

summary of Kass’s criminal history, the trial court adopted the State’s suggested offender score

of 11. The State’s unsupported summary was insufficient to satisfy its burden of proving Kass’s

criminal convictions by a preponderance of the evidence. See, e.g., 175 Wn.2d at 906, 915.

       Therefore, the trial court erred by sentencing Kass with an offender score of 11 because

the State failed to present sufficient evidence to establish Kass’s criminal history. Thus, we




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No. 47683-5-II



accept the State’s concession, vacate Kass’s sentence, and remand for resentencing, at which

time the State may establish Kass’s criminal history by a preponderance of the evidence. 8

                                            CONCLUSION

          Because the State presented sufficient evidence to support a permissive inference

instruction and the trial court’s failure to enter written CrR 3.5 findings and conclusions was

harmless, we affirm Kass’s conviction. But we vacate Kass’s sentence and remand for

resentencing to allow the State to present evidence of Kass’s criminal history.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                                         Worswick, J.
    We concur:



    Maxa, A.C.J.




    Melnick, J.




8
 Kass also argues, and the State concedes, that the judgment and sentence contains a scrivener’s
error misstating the date of the jury verdict. Because we remand for resentencing, we direct the
sentencing court to correct the error and ensure that the judgment and sentence reflects the
correct verdict date.

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