                                                                   FILED       -
                                                           COURT OF APPEALS DIY I
                                                            STATE OF WASHINGTON

                                                           2010 FEB 12 ftM 11: 30




        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



  STATE OF WASHINGTON,                                     No. 75554-4-1

                          Respondent,                      DIVISION ONE

                   V.

  BRETT RONALD CHASE,                                      UNPUBLISHED

                          Appellant.                       FILED: February 12, 2018



           Cox, J. — Brett Chase appeals his convictions for two counts of second

, degree burglary. He argues that these convictions violate double jeopardy

 because they are allegedly based upon "one act of theft in one location."

 Because the convictions are based on separate unlawful entries into separate

 "buildings" with the requisite intent, there is no double jeopardy violation. We

 affirm.

           Public Storage is a facility that rents out individual storage units. The

 facility is completely enclosed by a 6-foot chain-link fence. Access to this facility

 is restricted by a gate and passcode. Only staff and customers renting storage

  units are able to obtain access outside of normal business hours. Customers

 who rent units secure those units with locks that they supply.
No. 75554-4-1/2

          Chase visited Public Storage on July 24, 2015, attempting to rent a

storage unit. Edward Compton, Public Storage's property manager, refused to

rent to Chase because Chase had an outstanding bill. Compton did not see

Chase again that day. When Compton did a security check that night, he saw

that the fenced area was intact.

       The next day, Compton heard drilling noises and saw two men standing

outside of the fence, carrying tool cases. He recognized Chase as one of the

men. Both men fled the scene.

       Compton noticed that the fence was no longer intact because the wires

holding the fencing to the poles had been removed. Compton then discovered

that the locks on three storage units had been drilled, and there were metal

shavings and a drill bit in front of storage units 520 and 521. He called the

police.

          Police officers immediately responded and found Chase on the

embankment behind Public Storage. When Chase saw the officers, he ran

across the highway and was finally arrested in a park and ride lot. In a search

incident to arrest, officers found a grinding tool in Chase's pocket that matched

the drill bit found in front of storage units 520 and 521. These locks were not

defeated.

          David Stuhr rented storage unit 382. He saw that his lock had been drilled

out and destroyed and that items were missing from his unit. Police recovered

some of Stuhr's missing power tools along with other tools that did not belong to

him in the area behind Public Storage.


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No. 75554-4-1/3

       The State charged Chase with two counts of burglary and two counts of

attempted burglary. Count 1 charged Chase with second degree burglary based

on unlawfully entry of "the building of Public Storage" with the intent to commit

theft. Count 2 also charged him with second degree burglary, but was based on

Chase's unlawful entry into unit 382 with the intent to commit theft.

      The two charges for attempted burglary were based upon attempted entry

into units 520 and 521 with the intent to commit theft. These latter two charges

are not at issue in this appeal, and we need not further discuss them.

       The jury convicted Chase on all charged counts. The trial court sentenced

him accordingly.

       Chase appeals.

                               DOUBLE JEOPARDY

       Chase argues that his convictions for two counts of second degree

burglary violate double jeopardy. Because this record shows that two units of

prosecution for second degree burglary are proper under these circumstances,

we disagree.

      "The Fifth Amendment to the United States Constitution and article!,

section 9 of the Washington Constitution provide protections against double

jeopardy."1 "Double jeopardy is violated when a person is convicted multiple

times for the same offense."2 When a defendant raises a double jeopardy

challenge based on such multiple convictions, this court must first determine the


       1 State v. Brown, 159 Wn. App. 1, 9, 248 P.3d 518(2010).

       2 State   v. Barbee, 187 Wn.2d 375, 382, 386 P.3d 729(2017).

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No. 75554-4-1/4

unit of prosecution that the legislature intended.3 Once the court determines the

unit of prosecution, it analyzes the facts of the case to determine whether more

than one unit of prosecution is present.4

       We review de novo a double jeopardy claim.5

       In determining the unit of prosecution, this court first looks at the plain

meaning of the criminal statute in question.6 "The meaning of a plain and

unambiguous statute must be derived from the wording of the statute itself."7 If

the statute is ambiguous, the court may consider legislative history.5 If the

statute is still ambiguous, the court will apply the rule of lenity and construe any

ambiguity in favor of the defendant.9 Finally, "[w]hen engaging in statutory

interpretation, the court must avoid constructions that 'yield unlikely, absurd or

strained consequences."13

       We also review de novo issues of statutory interpretation.11




       3 Id.; State   v. Adel, 136 Wn.2d 629, 634, 965 P.2d 1072(1998).

       4   Barbee, 187 Wn.2d at 383.

       5   Id. at 382; State v. Ose, 156 Wn.2d 140, 144, 124 P.3d 635(2005).

       6   Barbee, 187 Wn.2d at 383.

       7 State   v. Tili, 139 Wn.2d 107, 115, 985 P.2d 365(1999).

       8   Id.; see Barbee, 187 Wn.2d at 383.

       9   Barbee, 187 Wn.2d at 383.
       10 Id. at 389 (quoting Kilian v. Atkinson, 147 Wn.2d 16, 21, 50 P.3d 638
(2002)).

       11 State v Brooks, 113 Wn. App. 397, 399, 53 P.3d 1048 (2002).

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No. 75554-4-1/5

       "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."12

       For purposes of the burglary statute, the word "building" is separately

defined:

       in addition to its ordinary meaning,[as] includ[ing] any dwelling,
       fenced area, . . . 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 ofa building
       consisting of two or more units separately secured or
       occupied is a separate building.[13]

       In this case, the charging documents for the two second degree burglary

counts specify that Chase unlawfully entered separate spaces, Public Storage

and storage unit 382.14 Each charge also alleged intent to commit theft.

       Chase correctly acknowledges that the "fenced area" that completely

encloses the storage facility is a building under the first part of the above

emphasized definition. Likewise, he acknowledges that each storage locker is

also a building under the second part of the above emphasized definition.

       But he then states the issue is whether one may "apply both parts of the

[definition] at the same time to one act of theft in one location... ."15 He argues

that these two definitions of "building" are mutually exclusive. He appears to



       12   RCW 9A.52.030(1).

       13   RCW 9A.04.110(5)(emphasis added).

       14   Cf. State v. Bergeron, 105 Wn.2d 1, 4, 711 P.2d 1000(1985).

       15 Appellant's   Opening Brief at 12.

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No. 75554-4-1/6

argue that even though the statutory definition of "building" encompasses both

the fenced area and the storage unit, the State had to choose to either prosecute

him for unlawful entry of the fenced area or Stuhr's storage unit, not both. We

disagree.

       The first problem with this argument is his misstatement of the issue. The

two counts at issue were for burglary, not theft. The former does not require

commission of theft, only the intent to commit "a crime" coupled with unlawful

entering or remaining in a building. Accordingly, the first issue for double

jeopardy purposes is what did the legislature intend as the unit of prosecution for

the crime of burglary.16 The next issue is whether the facts of this case support

more than one unit of prosecution.17

       The unit of prosecution for burglary is each entry into "a building."18 While

Chase acknowledges that each entry into a building constitutes a separate unit of

prosecution, he argues, without citation to authority, that the use of a semicolon

to separate the two statutory definitions of building at issue in this case is

intended to make those definitions mutually exclusive, requiring an election

between the two.19 Because he fails to cite any authority for this proposition, on




       18   Barbee, 187 Wn.2d at 382; Adel, 136 Wn.2d at 634.

       17   Barbee, 187 Wn.2d at 383.

       18   RCW 9A.52.030(1); Brooks, 113 Wn. App. at 400.

       18 See   RCW 9A.04.110(5).

                                              6
No. 75554-4-1/7

this basis alone, we could reject this argument.23 In any event, a semicolon

separates phrases or clauses that are of equal importance.21

         Chase then argues that case law supports the conclusion that the

legislature intended the two parts of the statute to be mutually exclusive. We

again disagree.

          Chase chiefly relies on State v. Thomson to support this argument, but

his reliance is misplaced.22

         In Thomson, Division Two of this court considered the definition of building

in the last portion of RCW 9A.04.110(5), which follows the semicolon. The

question in that case was whether the locked bedroom within a house constituted

a separate building from the house for purposes of the first degree rape statute.

That statute required felonious entry into the building where the victim was

situated.23 There, Thomson had permission to enter the house and spend the

night in a guest room, but he broke into the victim's locked bedroom and raped

her.24

         The State claimed that Thomson was guilty of first degree rape because

the locked bedroom was a separate building as defined in the last portion of


             State v. Young, 89 Wn.2d 613, 625, 574 P.2d 1171, cert. denied,
         20 See
439 U.S. 870, 99 S. Ct. 200, 58 L. Ed. 2d 182(1978).

     21 State Dep't Labor & Indus. v. Slaugh, 177 Wn. App. 439, 448, 312 P.3d
676(2013).

         22 71      Wn. App. 634,645, 861 P.2d 492(1993).

         23 Id. at 636 (citing   RCW 9A.44.040(1)(d)).
         24   Id.

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No. 75554-4-1/8

RCW 9A.04.110(5). Specifically, it argued that the bedroom was a building

because it was at least one room and was separately locked at the time of the

crime. Thus, Thomson feloniously entered the "building" where the victim was

located 25

      The court disagreed. It concluded that the definition was ambiguous

because "there are two possible approaches to the term 'building." One was that

advanced by the State. The other was that a "building" included a structure

where two or more rooms were occupied or intended to be occupied by different

tenants separately. Either meaning encompassed buildings such as hotels and

the like. But only the meaning advanced by the State encompassed a house like

that wholly occupied by one person or family.

      The court than examined the legislative history of the statute, which

included the former Orange Code, the colloquial name of the proposed Revised

Washington Criminal Code.26 After this examination, the court concluded that the

legislature intended that "the second part of RCW 9A.04.110(5) apply to buildings

in which two or more rooms were occupied or intended to be occupied by

different tenants separately."27

       The court recognized that the determination of whether a building should

be classified as one building or many for purposes of the burglary statute




       25   Id. at 642.

       26   Id. at 643.

       27   Id. at 644.

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No. 75554-4-1/9

depends on privacy rights.28 The court observed that in a single family dwelling,

every family member living in the house has a similar privacy interest in the entire

house and therefore burglarizing different bedrooms is all part of the burglary of

one "building."29 Conversely, in a multi-unit structure, "each tenant has a privacy

interest in his or her room or apartment, and that interest is separate from the

interests of other tenants."39 Therefore, each room or apartment is a separate

building.31

       Since that 1993 decision, the legislature has not modified the definition of

building in the statute. We assume that the legislature has acquiesced to that

decision's reading of its intent.32

       Applying the rationale of Thomson to the facts of this case, we conclude

that the individual storage units at Public Storage fall within the last portion of the

definition because each is "separately secured or occupied."33 Each customer

renting a unit has a separate privacy interest from any other customer. Likewise,

each customer has a separate privacy interest from Public Storage, the owner of

the facility entirely enclosed by the fence.




       28   Id. at 645.

       29   Id.

       39   Id.
       31   id.

        McKinney v. State, 134 Wn.2d 388, 403, 950 P.2d 461 (1998); State v.
       32
Coe, 109 Wn.2d 832, 846, 750 P.2d 208 (1988).

       33 See Thomson, 71     Wn. App. at 644; RCW 9A.04.110(5).

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No. 75554-4-1/10

       Chase argues that Thomson also supports his contention that the

legislature did not intend the first part of RCW 9A.04.110(5) to apply to a multi-

unit facility such as Public Storage. He is wrong.

       In Thomson, the entire house, including the bedroom, was occupied by              -

the victim.34 Thus, the court decided that the victim's privacy interest extended to

the entire house, not just the room where the crime occurred. In doing so, it

contrasted that situation with a multi-unit structure, where each tenant has a

privacy interest in his or her room or apartment that is separate from the privacy

interests of other tenants. Thus, in the latter situation, the court concluded that it

made sense to characterize separate rooms as separate "buildings."

       Here, Public Storage has a privacy interest in the fenced area. But the

customers renting storage space have separate privacy interests in their

respective storage units. Therefore, these respective areas that evidence

separate privacy interests are necessarily separate buildings within the statute.

       Chase further argues that post-Thomson cases support his claim that the

State cannot proceed to prosecute him for multiple counts of burglary by relying

on both definitions in RCW 9A.04.110(5). But none of those cases support his

argument.

       In State v. Deitchler, the court held that an evidence locker in a police

office building was not a separate building because the police department was

the sole tenant.35 Dustin Deitchler was lawfully in the police station when he tried


       34   Id. at 646.

       35 75 Wn. App. 134, 136-37, 876 P.2d     970(1994).

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No. 75554-4-1/11

to steal items from the evidence locker.36 Because the evidence locker belonged

to the police department and because Deitchler was lawfully in the station, he did

not unlawfully enter a "building" when he broke into the locker.37

       Deitchler is distinguishable because there was uniformity of privacy

interests in the building and the evidence locker. If, as in Deitchler, Chase had

unlawfully entered the fenced area and then unlawfully entered Public Storage's

own building, there would be a similar unity of privacy interests. On this record,

however, there is no such unity of privacy interests.

       For the same reason, Chase's citation to State v. Miller is not

persuasive.36 In that case, James Miller was lawfully on the premises of the car

wash when he broke into the coin boxes that were owned by, and thus

"occupied" and secured by, the same entity as the car wash itself.39

       In sum, all of the cases cited by Chase in support of his argument involve

buildings with identical privacy interests, be it a home as in Thomson, a police

station as in Deitchler, or a car wash as in Miller. Thus, none of them support

Chase's argument that charges based on unlawful entry into the fenced area and

unlawful entry into the individual storage unit violate double jeopardy.




       38   Id. at 135, 137n.4.

       37   Id. at 137.

       38 90 Wn. App. 720, 954 P.2d   925(1998).

       39   Id. at 725, 729.

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No. 75554-4-1/12

       In State v. Daniel Miller, Division Two of this court addressed the burglary

of a multi-unit building with distinct areas of occupancy and privacy interests.40

Daniel Miller was convicted of two counts of burglary for breaking into a tenant's

storage locker and into a locked workroom, both of which were located in the

laundry room of an apartment building.41 Miller claimed there was insufficient

evidence to convict him of burglary of the tenant's storage room.42 The court

disagreed.

       The court concluded that the tenant had a separate privacy interest

because the storage locker had a separate padlock that secured it from other

tenants or the building owners.43 The court distinguished Deitchler because

there "the police department was the only tenant with a privacy interest in both

the station and the secured evidence locker" and thus, the locker was not a

separate building.44

       Unlike the locked workroom and the storage locker in the Miller case on

which Chase relies, the fenced area here does not exclude those who rent

individual storage units. But because Public Storage has a separate privacy

interest in this fenced area that is secured from persons other than employees



      40 91 Wn. App. 869, 960 P.2d 464(1998)(We use the defendant's first
and last name in the citation to avoid confusion.).

       41   Id. at 871.
       42   Id.

       43 Id. at 873.

       44   Id.

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No. 75554-4-1/13

and customers renting storage units, that area is a building as defined in the first

part of RCW 9A.04.110(5).

       Chase further argues that the two clauses in RCW 9A.04.110(5) must be

mutually exclusive to avoid absurd or strained results.45 He argues that if his one

act of theft in one location can support two burglary charges, for a "building within

a building, then it logically follows that[one] act can also support three charges

for a building within a building within a building," and "[t]here is no reasoned

limitation" to the number of counts supported by one act in one place.46 This

argument is unpersuasive.

       First, we already explained that burglary does not require a completed act

of theft. Rather, the elements are unlawful entry with the requisite criminal intent.

       Second, contrary to Chase's argument, the two counts at issue on appeal

are not based on one act in one place. Chase committed one act of burglary by

unlawful entry of the fenced area of Public Storage with the requisite criminal

intent. He committed the other act of burglary by unlawful entry of the storage

locker belonging to David Stuhr with the requisite criminal intent. On this record,

the two are not the same.

       Finally, because the language contained in the statute defining building is

not ambiguous, the rule of lenity does not apply.47 We reject his argument to the

contrary.


       45 See   Barbee, 187 Wn.2d at 389.

       46   Appellant's Opening Brief at 19-20.

       47   Barbee, 187 Wn.2d at 383; Tili, 139 Wn.2d at 115.

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No. 75554-4-1/14

       In his reply brief Chase argues that the State improperly relied on

evidence that he broke into Stuhr's storage unit to support both counts of

burglary. He argues that the jury was never asked to consider whether he cut

through the fence. We decline to consider this new argument because it was not

timely raised.

       We affirm the judgment and sentence.
                                                                      j 3-7



WE CONCUR:




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