                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                         August 7, 2018


    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                               No. 50154-6-II

                                Respondent,

        v.                                                   UNPUBLISHED OPINION

 JOEY LEE McMILLAN,

                                Appellant.

       MAXA, C.J. – Joey McMillan appeals his convictions of second degree burglary and third

degree malicious mischief. We hold that the trial court did not err in declining to give two jury

instructions that McMillan proposed: (1) an instruction that modified the statutory definition of

“enters or remains unlawfully” to add a knowledge requirement, and (2) a lesser included offense

instruction for first degree criminal trespass. Accordingly, we affirm McMillan’s convictions.

                                              FACTS

       On Saturday, June 25, 2016, Noel Vas went into the Washington State Auditor’s Office

in Tumwater, where he worked. He noticed some ceiling tiles and wires dangling near the wall

and saw McMillan in a co-worker’s cubicle on his hands and knees. Vas called 911 and reported

that there was an intruder in the building.

       Tumwater Police Officer Tye Hollinger located McMillan inside the building. Hollinger

arrested McMillan and in a search incident to arrest discovered what appeared to be a used

hypodermic syringe. Hollinger spoke with McMillan, who explained that earlier that day he had

purchased heroin and methamphetamine and used both at the same time. He admitted entering
No. 50154-6-II


the building through a back door that had not been properly secured, and he admitted causing

damage to the facility. McMillan explained that he went into the building because people were

hiding from him.

       Hollinger believed that McMillan was under the influence of methamphetamine. But

Hollinger noted that McMillan was able to speak coherently and cooperatively, that he had no

difficulties speaking with McMillan, and that McMillan appeared to have no problems

remembering what had happened.

       Hollinger identified damage throughout the IT department. In the breakroom, chairs

were overturned and torn and the refrigerator was pulled out. In the hallway, a knife was stuck

in a door jamb. And near Vas’s office, ceiling tiles were removed and electrical and network

wires were cut.

       The State charged McMillan with second degree burglary and second degree malicious

mischief.

       At trial, McMillan provided expert testimony from a psychologist, Michael Stanfill,

Ph.D. Stanfill testified that because McMillan was under the influence of drugs, he lacked the

capacity to form intent as it related to the burglary charge. Specifically, he stated that McMillan

did not have the capacity to intend to unlawfully enter a building or intend to commit a crime

therein. Stanfill described McMillan as suffering from delusions that people were hiding from

him, following or chasing him, and spying on him.

       However, Stanfill testified that McMillan did have the capacity to form an intent

regarding the malicious mischief charge. According to Stanfill, McMillan understood that he

was causing damage to property.



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No. 50154-6-II


        McMillan proposed an instruction that modified the statutory definition of “enters or

remains unlawfully in or upon premises” in the definition of burglary to add a requirement that a

person must be aware that he or she had entered or remained unlawfully. The State argued that

it was only required to prove intent to commit a crime within the building, not intent to enter or

remain unlawfully. The trial court rejected the proposed instruction, finding that the law did not

support it.

        McMillan also proposed a jury instruction on first degree criminal trespass as a lesser

included offense of second degree burglary. He based this request on testimony from Stanfill,

who stated that McMillan told him that he did not realize he was unlawfully in the building until

after he had caused damage inside. McMillan told Stanfill that he came to this realization when

Vas confronted him. McMillan argued that from the time of that realization until the police

arrested him, he was committing only the crime of criminal trespass. The trial court rejected the

proposed lesser included offense instruction.

        The jury found McMillan guilty of second degree burglary, not guilty of second degree

malicious mischief, and guilty of the lesser offense of third degree malicious mischief.

McMillan appeals his convictions.

                                           ANALYSIS

A.      BURGLARY INSTRUCTION

        McMillan argues that the court erred in declining to give his proposed instruction that

modified the statutory definition of “enters or remains unlawfully” to add a knowledge

requirement. We disagree.




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No. 50154-6-II


       1. Legal Principles

       In general, we review a trial court’s choice of jury instructions for an abuse of discretion.

State v. Hathaway, 161 Wn. App. 634, 647, 251 P.3d 253 (2011). However, we review de novo

the refusal to give an instruction based on a ruling of law. State v. Cordero, 170 Wn. App. 351,

369, 284 P.3d 773 (2012).

       Jury instructions are appropriate if they allow a defendant to argue his or her theories of

the case, are not misleading, and when read as a whole properly state the applicable law. State v.

Aguirre, 168 Wn.2d 350, 363-64, 229 P.3d 669 (2010). It is not error to refuse to give a specific

instruction when a more general instruction adequately explains the law and allows each party to

argue its theories of the case. Hathaway, 161 Wn. App. at 647.

       2.    Analysis

       Under RCW 9A.52.030(1), a person is guilty of second degree burglary when he or she

“enters or remains unlawfully” in a building with the intent to commit a crime therein. RCW

9A.52.010(2) states, “A person ‘enters or remains unlawfully’ in or upon premises when he or

she is not then licensed, invited, or otherwise privileged to so enter or remain.” The trial court

gave a jury instruction that was virtually identical to RCW 9A.52.010(2). The same language is

contained in Washington Pattern Instruction Criminal 65.02.1

       McMillan proposed that additional language be inserted at the end of the standard

instruction: “and is aware of the fact that he or she is not then licensed, invited, or otherwise

privileged to so enter or remain.” Clerk’s Papers at 66 (emphasis added). He claims that a



1
 11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 65.02, at
39 (4th ed. 2016).


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No. 50154-6-II


knowledge component must be implied in the burglary statute. However, neither RCW

9A.52.030(1) nor RCW 9A.52.010(2) support this argument. RCW 9A.52.030(1) does not state

that a person must “knowingly” enter or remain in a building unlawfully in order to commit

burglary, just that he or she enter or remain unlawfully. The definition of “enters or remains

unlawfully” in RCW 9A.52.010(2) does not contain a knowledge requirement. And the cases

McMillan cites do not support such a requirement. See State v. Allen, 127 Wn. App. 125, 137,

110 P.3d 849 (2005) (comparing intent to commit a crime before and after entering building

lawfully and unlawfully).

         Further, the legislature imposed an express knowledge requirement for criminal trespass,

which occurs when a defendant “knowingly enters or remains unlawfully in a building.” RCW

9A.52.070(1) (emphasis added). The absence of the same language in the burglary statute shows

that the legislature did not intend to impose such a requirement for burglary. See State v.

Slattum, 173 Wn. App. 640, 655, 295 P.3d 788, 796 (2013) (stating that when the legislature

omits language from a statute, the court will not read the omitted language into the statute).

         RCW 9A.52.010(2) states the applicable definition of “enters or remains unlawfully.”

We hold that the trial court did not err by giving an instruction that used the statutory language.

See State v. Harris, 164 Wn. App. 377, 387, 263 P.3d 1276 (2011) (stating that a trial court

should instruct based on the statutory language when the statute expresses the law governing the

case).

B.       LESSER INCLUDED OFFENSE INSTRUCTION – CRIMINAL TRESPASS

         McMillan argues that the trial court erred in declining to give a lesser included offense

instruction on first degree criminal trespass. We disagree.



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No. 50154-6-II


       1.   Legal Principles

       A defendant is entitled to a lesser included instruction if “(1) each element of the lesser

offense is a necessary element of the offense charged (legal prong) and (2) the evidence, viewed

most favorably to the defendant, supports an inference that only the lesser crime was committed

(factual prong).” State v. Hahn, 174 Wn.2d 126, 129, 271 P.3d 892 (2012) (citing State v.

Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978)).

       A lesser included offense instruction must be given if requested when the evidence would

allow the jury to find the defendant guilty of the lesser offense and acquit him or her of the

greater offense. State v. Fernandez-Medina, 141 Wn.2d 448, 456, 6 P.3d 1150 (2000).

However, “the evidence must affirmatively establish the defendant’s theory of the case – it is not

enough that the jury might disbelieve the evidence pointing to guilt.” Id.

       As noted above, the elements of second degree burglary are entering or remaining

unlawfully in a building with the intent to commit a crime therein. RCW 9A.52.030(1). First

degree criminal trespass occurs when the defendant “knowingly enters or remains unlawfully in

a building.” RCW 9A.52.070(1).

       2.   Factual Prong Analysis

       Here, the parties focus only on the factual prong of the test for giving a lesser included

offense instruction. Therefore, we do not address the legal prong: whether first degree criminal

trespass is a lesser included offense of second degree burglary.2


2
 Several cases hold that first degree criminal trespass is a lesser included offense of second
degree burglary. E.g., State v. Olson, 182 Wn. App. 362, 375, 329 P.3d 121 (2014). However,
as discussed above, a knowing unlawful entry is required for first degree criminal trespass but
not for second degree burglary. Therefore, we question whether the legal prong is satisfied here.



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       The issue is whether the evidence supports an inference that McMillan committed only

first degree criminal trespass. McMillan argues that the evidence supported a finding that (1) he

did not have the mental capacity to know that he was not authorized to enter or remain in the

building when he damaged the property inside; (2) he became aware that he was in the building

unlawfully only after Vas confronted him, when the damage already had occurred; and (3) he

committed criminal trespass when he remained in the building after becoming aware that he was

in the building unlawfully. McMillan claims that these findings would have allowed the jury to

convict him of criminal trespass but acquit him of burglary.

       However, McMillan’s argument is based on his position that a person “enters or remains

unlawfully” in a building only if the person is aware that he or she is acting unlawfully. As

discussed above, we reject that position. Therefore, the only evidence presented to the jury was

that McMillan entered the building unlawfully and also remained in the building unlawfully

during the entire time he was inside. And the undisputed evidence from Stanfill was that

McMillan had the capacity to intend to damage property inside the building. Therefore, the jury

could not have found him guilty only of criminal trespass during the time he remained in the

building but after he caused the damage.

       We hold that the trial court did not err in denying McMillan’s request for a lesser

included instruction.




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No. 50154-6-II


                                          CONCLUSION

        We affirm McMillan’s convictions.

        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.



                                                      MAXA, C.J.
 We concur:



 JOHANSON, J.




 SUTTON, J.




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