                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                          October 8, 2019
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II

 STATE OF WASHINGTON,                                              No. 51277-7-II

                               Respondent,                   UNPUBLISHED OPINION

        v.

 JENNIFER A. BROCKETT,

                               Appellant.

       GLASGOW, J. — Jennifer Brockett had a fight with her boyfriend in her car one evening

after they had been out drinking. She left the car on foot, walked for a while, and eventually

entered a stranger’s garage. The next morning, the owner discovered that someone had been in

his garage and several items were missing, including his wallet. Brockett was convicted of

residential burglary, second degree vehicle prowling, and second degree identity theft.

       Brockett appeals, arguing that she received ineffective assistance of counsel for her

counsel’s failure to request a voluntary intoxication jury instruction. She also contends that the

trial court violated her right to present a defense when it excluded her mother’s testimony about

her tendency to react irrationally when she is under stress. She asserts that the State presented

insufficient evidence to support her residential burglary conviction because the garage was not a

dwelling. Finally, she challenges the imposition of a criminal filing fee and DNA collection fee.

       We affirm Brockett’s convictions and remand for the trial court to address whether the

criminal filing fee and DNA collection fee should be imposed.
No. 51277-7-II


                                              FACTS

       On the night of May 2, 2015, Brockett and her boyfriend left a casino where they had been

drinking and arguing. The argument continued in her car where Brockett’s boyfriend slapped her.

He then pulled over on the side of the road. They both got out of the car and began walking in

separate directions. Brockett was barefoot. She was “very intoxicated and a little out of control”

when she “staggered” away from the car toward a 24-hour convenience store. Verbatim Report of

Proceedings (VRP) (Vol. II) at 209.

       Brockett cut her foot and it started bleeding. She saw a house with lights on and walked

toward it to seek help and refuge. She knocked on the door but nobody answered. She then entered

the garage through a side door to look for something to bandage her foot.

       The garage was attached to the house via a covered, but open, walkway. The garage had

its own door that was unconnected to the house; a person would have to exit the house, go outside,

and access a separate door to enter the garage. The house and garage had a contiguous roof and a

shared wall, but they had separate doors to the outside, and there was a walkway between the

doors. In addition, there was undisputed testimony that the garage was “absolutely attached to the

house, but you do have to go into the elements to get outside, but it is one piece.” VRP (Vol. I) at

138-39.

       The next thing Brockett remembered after entering the garage was waking up in the car

that was parked in the garage. She explained that she had been in a blackout for part of the night

but had “sobered up a little” when she woke up. VRP (Vol. II) at 215. She later testified that she

then opened the garage’s large sliding door and walked out without taking anything. According

to Brockett, she was in the garage for about 20 minutes and left immediately after waking up.


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No. 51277-7-II


       The owner of the house, Jack Owens, awoke the next morning to find the large garage door

partly open, blood in and around his car, and several items missing from the garage. Among the

missing items, valued around $800, were his wallet containing credit cards and identification, a

bicycle, a backpack, a tent, a folding chair, and several tools. The car stereo was also ripped out

of the dashboard and sitting on the seat, and the stereo faceplate was missing.

       Detective Brandon McNew, then a patrol officer, arrived later that day to investigate and

document the scene. He took a sample of the blood found in the garage and sent it to the crime

lab for testing. That sample matched a sample of Brockett’s DNA already on file with the police.

McNew then contacted and arrested Brockett and obtained a sample of her DNA. A forensic

scientist later testified that this newly obtained sample matched the sample taken from the garage.

Brockett was charged with residential burglary, second degree theft, second degree vehicle

prowling, and second degree identity theft.

       At trial, Brockett and McNew testified consistent with the above facts. In addition, McNew

testified that during his interview of Brockett, she initially denied ever being in Owens’s garage,

but then admitted she was there after McNew told her the police had obtained a DNA profile for

the blood found in the garage. McNew testified that Brockett then admitted to taking the tools,

wallet, and stereo faceplate, putting them in the backpack, and riding off on the bicycle. She

denied taking the tent and folding chair. McNew further testified that Brockett told him she left

the stolen items in an alley.

       Brockett contested McNew’s description of the interview. She testified that she did not

admit to taking anything during this interview, but rather McNew had described what he thought

she had done and then asked her whether his characterization of the event was accurate. Brockett


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No. 51277-7-II


claimed that she had replied it was “possible” that she had taken those items as he described

because she could not remember everything from that night. VRP (Vol. II) at 217. “I told him I

did not remember doing any of that stuff. . . . I remember telling him I did not remember doing

any of that or that I did not do it.” VRP (Vol. II) at 240.

        Brockett further testified to her intoxication that night by saying “that could have happened

because I was so intoxicated and I have been—there is parts of that night that I don’t remember

and there is things that—and I have been intoxicated like that one other time where people have

told me things that I did when I was drinking and I was shocked that they were telling me these

things that I did because I do not remember doing them.” VRP (Vol. II) at 215. When asked why

she entered the garage rather than seeking refuge or help elsewhere, she replied that she was

“intoxicated” and “plastered,” and explained: “I have no logical explanation for my actions. . . . I

was intoxicated. . . . My logic and reason and my function were highly affected.” VRP (Vol. II)

at 229, 231-32. “I started feeling a little desolate and desperate . . . [a]fter walking for so long and

being intoxicated and feeling completely helpless.” VRP (Vol. II) at 233-34.

        Brockett’s testimony contained some inconsistencies. She testified she did not take

anything from Owens’s garage, but also said that she had admitted to McNew that it was possible

she had taken some things because she could not remember everything from that night. And

although Brockett repeatedly said she was very intoxicated that night, when the prosecutor asked

her whether she understood when she woke up that it was wrong for her to be in Owens’s garage,

she also repeatedly admitted that she knew that she should not be there and left immediately.




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No. 51277-7-II


          Brockett’s mother, Mary Christine Brockett,1 also testified. At one point defense counsel

asked her if it had been easy to raise Brockett. The State objected for relevance and the court

sustained. Defense counsel explained that she was trying to establish Brockett’s state of mind on

the night in question, and the State objected again on the basis that Christine did not see Brockett

that night and so had no knowledge of her state of mind at that time. The court replied: “I’m not

sure that that—there may be some relevancy, but I don’t think this witness would be able to testify

to that.” VRP (Vol. II) at 261. Defense counsel explained: “Not as to her frame of mind actually

that night but how she gets under situations of stress.” VRP (Vol. II) at 261. The State objected

for relevance and the court sustained.

          Prior to closing arguments, when the State expressed its concerns to the court that it would

be improper for Brockett to raise a voluntary intoxication defense, defense counsel replied: “I

don’t know what he’s talking about.” VRP (Vol. II) at 302. The jury did not receive an instruction

on voluntary intoxication, though it was instructed on intent generally.

          During closing argument, defense counsel did not argue that Brockett was so drunk that

she could not form the intent required for conviction of the charged crimes. Instead, defense

counsel discussed Brockett’s intoxication as support for her argument that Brockett was merely

seeking refuge when she entered the garage. The State also used Brockett’s intoxication to explain

her behavior in its closing argument, presenting it as a reason she may have acted erratically or

irrationally.

          The jury convicted Brockett of residential burglary, second degree vehicle prowling, and

second degree identity theft, but acquitted her of second degree theft. Because she had several


1
    For the sake of clarity, we refer to Mary Christine Brockett as Christine, the name she uses.
                                                   5
No. 51277-7-II


prior convictions, Brockett was sentenced to 72 months on her residential burglary conviction, 364

days for vehicle prowling, and 57 months for identity theft, all to be served concurrently. The

court imposed a $200 criminal filing fee and a $100 DNA collection fee, but also found Brockett

to be indigent.

       Brockett appeals.

                                          ANALYSIS

                            I. INEFFECTIVE ASSISTANCE OF COUNSEL

       Brockett argues that she received ineffective assistance of counsel based on her trial

counsel’s failure to request a jury instruction on voluntary intoxication and to argue her

intoxication compromised her ability to form an intent to commit a crime. We disagree.

A.     Ineffective Assistance of Counsel Standards

       Both the Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington Constitution guarantee the right of a criminal defendant to effective assistance of

counsel. Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984); State v. Thomas, 109 Wn.2d 222, 229, 743 P.2d 816 (1987). Washington follows the

Strickland test: the defendant must show both that counsel’s performance was deficient and the

deficient performance prejudiced the defense. 466 U.S. at 687; State v. Cienfuegos, 144 Wn.2d

222, 226, 25 P.3d 1011 (2001).

       A defendant bears the burden of establishing deficient performance. State v. McFarland,

127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Trial counsel’s performance is deficient if it falls

“below an objective standard of reasonableness.” Strickland, 466 U.S. at 687-88. “There is a

strong presumption that counsel’s performance was reasonable.” State v. Kyllo, 166 Wn.2d 856,


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No. 51277-7-II


862, 215 P.3d 177 (2009). To demonstrate deficient performance, a defendant must show in the

record the absence of legitimate strategic or tactical reasons supporting counsel’s challenged

conduct. State v. Emery, 174 Wn.2d 741, 755, 278 P.3d 653 (2012). In evaluating ineffectiveness

claims, we must be highly deferential to counsel’s decisions. State v. Michael, 160 Wn. App. 522,

526, 247 P.3d 842 (2011).

       To show prejudice, the defendant must show that counsel’s errors “were so serious as to

deprive the defendant of a fair trial.” Strickland, 466 U.S. at 687. In other words, the defendant

must show “‘a reasonable probability that, but for counsel’s deficient performance, the outcome

of the proceedings would have been different.’” State v. Grier, 171 Wn.2d 17, 34, 246 P.3d 1260

(2011) (quoting Kyllo, 166 Wn.2d at 862). “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

       Thus, to prevail on appeal on this issue, Brockett must show that she was entitled to a

voluntary intoxication instruction, defense counsel’s decision not to ask for the instruction was not

based on a legitimate trial strategy, and defense counsel’s decision prejudiced Brockett.

B.     Brockett Would Have Been Entitled to a Voluntary Intoxication Instruction

       RCW 9A.16.090 provides that voluntary intoxication does not make an act any less

criminal, “but whenever the actual existence of any particular mental state is a necessary element

to constitute a particular species or degree of crime, the fact of his or her intoxication may be taken

into consideration in determining such mental state.” “‘Evidence of voluntary intoxication is

relevant to the trier of fact in determining in the first instance whether the defendant acted with a

particular degree of mental culpability.’” Thomas, 109 Wn.2d at 227 (quoting State v. Coates, 107

Wn.2d 882, 889, 735 P.2d 64 (1987)). Washington Pattern Jury Instruction 18.10 further provides


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No. 51277-7-II


that “evidence of intoxication may be considered in determining whether the defendant [acted with

the required mental state].” WASH. PATTERN JURY INSTRUCTIONS: CRIMINAL 18.10 (4th ed.) (2016)

(alteration in original).

        A defendant is entitled to a voluntary intoxication instruction when (1) the crime charged

includes a mental state, (2) there is substantial evidence of drinking, and (3) there is evidence that

the drinking affected the defendant’s ability to form the requisite intent or mental state. State v.

Kruger, 116 Wn. App. 685, 691, 67 P.3d 1147 (2003). First, each of the crimes for which Brockett

was convicted required a particular mental state—some level of knowledge or intent—in order to

support a conviction, and the jury was instructed on this element of each charge. For residential

burglary, she had to unlawfully enter or remain in a dwelling with intent to commit a crime therein.

RCW 9A.52.025(1). For vehicle prowling, she had to unlawfully enter or remain in a vehicle with

intent to commit a crime therein. RCW 9A.52.100(1). And for second degree identity theft, she

had to obtain, possess, use, or transfer a means of identification of another person knowingly and

with intent to commit, or to aid or abet, any crime. RCW 9.35.020(1). Thus, each crime charged

required proof of a particular mental state.

        Second, we consider whether there was substantial evidence of drinking. Kruger, 116 Wn.

App. at 691. The evidence of Brockett’s intoxication was undisputed. She had been drinking with

her boyfriend that night, and then left her car in the road with the keys in the ignition. She was

barefoot. She testified that she blacked out and woke up in Owens’s car. She testified that she

could not remember everything that happened that night. And similar to Thomas, Brockett

presented evidence that she had blacked out from drinking before. Thomas, 109 Wn.2d at 225.

Finally, the State emphasized her intoxication during closing.


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No. 51277-7-II


       Third, there was also evidence that Brockett’s intoxication affected her ability to form the

required mental state. Kruger, 116 Wn. App. at 691. Brockett testified she was very intoxicated

and confused when she entered the garage and the vehicle. She passed out and it is unclear how

much time passed before she woke up.

       Instead of disputing her intoxication, the State relies on her testimony that she had sobered

up to some extent before she left the garage. While Brockett did testify that she woke up, realized

she should not have been there, and left immediately without taking anything, she also said that it

was possible she took some items after she woke up because she was so drunk she could not

remember everything. At different times she both denied taking anything and said she was too

drunk to remember. But it is generally permissible for a defendant to argue inconsistent defenses,

as long as they are supported by the evidence. State v. Frost, 160 Wn.2d 765, 772, 161 P.3d 361

(2007). As Division One observed in State v. Gabryschak:

        Intoxication is not an all-or-nothing proposition. A person can be intoxicated and
        still be able to form the requisite mental state, or he can be so intoxicated as to be
        unconscious. Somewhere between these two extremes of intoxication is a point
        on the scale at which a rational trier of fact can conclude that the State has failed
        to meet its burden of proof with respect to the required mental state.

83 Wn. App. 249, 254, 921 P.2d 549 (1996) (internal citation omitted).

       Here, there was evidence that after Brockett woke up she was sufficiently coherent to form

the intent necessary for conviction, but there was also substantial evidence that she was not,

including that she blacked out and lost consciousness long enough to leave a pool of blood in the

car. The outcome would depend on what the jury believed. Therefore, we conclude that Brockett

would have been entitled to a voluntary intoxication instruction had she requested one.




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No. 51277-7-II


C.        Counsel Was Not Deficient When She Did Not Request an Instruction

          Next we address whether counsel was deficient because she did not request the instruction

and argue that voluntary intoxication affected Brockett’s ability to form the required intent. The

fact that a defendant is entitled to obtain a voluntary intoxication instruction does not necessarily

mean that counsel performed deficiently when she did not do so, especially where the defendant

is presenting a defense like denial.

          Brockett’s defense was based on denial. Brockett testified that she remembered walking

out of the garage empty-handed and without a bike. Defense counsel argued in closing that if that

were true, anyone could have entered the garage through the door Brockett left open. An alternate

theory that Brockett was too drunk to remember anything would have weakened the defense of

denial.     Moreover, while the evidence was sufficient to support a voluntary intoxication

instruction, there was also evidence that Brockett was adequately aware of the situation to make

conscious decisions, such as seeking refuge in the garage and leaving the garage as soon as she

woke up and realized she should not be there. It was a legitimate strategy to avoid the risk of

undermining Brockett’s denial.

          Brockett also points out that when the State expressed concerns that there had been

insufficient evidence presented to support a diminished capacity defense, defense counsel replied:

“I don’t know what he’s talking about,” suggesting perhaps that she had not considered the

defense. VRP (Vol. II) at 301-02. But to demonstrate deficient performance, a defendant must

show in the record the absence of legitimate strategic or tactical reasons supporting counsel’s

challenged conduct. Emery, 174 Wn.2d at 755. Here, defense counsel’s lone comment does not

show that she utterly lacked any legitimate strategic reason to rely on the defense of denial rather


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No. 51277-7-II


than ask for the instruction. The record does not reveal the tone in which this response was made.

As discussed above there were tactical reasons that supported a decision not to request a voluntary

intoxication instruction.

       We hold that Brockett failed to show that defense counsel was deficient for not requesting

an involuntary intoxication instruction or arguing intoxication prevented her from forming intent.

Her claim of ineffective assistance of counsel fails.

                                 II. RIGHT TO PRESENT A DEFENSE

       Brockett argues the trial court violated her right to present a defense by excluding her

mother’s testimony regarding her state of mind. We disagree.

A.     Standard of Review for Trial Court’s Exclusion of Defense Evidence

       A defendant’s right to present a defense is not absolute: the evidence that a defendant

desires to introduce “‘must be of at least minimal relevance’” because a defendant has no right to

present irrelevant evidence. State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010) (quoting

State v. Darden, 145 Wn.2d 612, 622, 41 P.3d 1189 (2002)). To prevail on a claim that she was

deprived of her Sixth Amendment right, Brockett must at least make some plausible showing of

how the subject of the testimony would have been both material and favorable to her defense.

State v. Gonzalez, 110 Wn.2d 738, 750, 757 P.2d 925 (1988); see also Pennsylvania v. Ritchie,

480 U.S. 39, 58 n.15, 107 S. Ct. 989, 94 L. Ed. 2d 40 (1987).

       Our first step, therefore, is to review for abuse of discretion the trial court’s assessment of

whether the excluded evidence was relevant. State v. Lee, 188 Wn.2d 473, 486-93, 396 P.3d 316

(2017); State v. Clark, 187 Wn.2d 641, 648-49, 389 P.3d 462 (2017); State v. Blair, 3 Wn. App.

2d 343, 350-52, 415 P.3d 1232 (2018); State v. Horn, 3 Wn. App. 2d 302, 310, 415 P.3d 1225


                                                 11
No. 51277-7-II


(2018).2 A trial court abuses its discretion when its decision is manifestly unreasonable or based

on untenable grounds or reasons. Lee, 188 Wn.2d at 486.

B.     The Court Did Not Abuse Its Discretion

       Had she been permitted to testify on Brockett’s state of mind, Christine would have

explained how Brockett typically reacts in stressful situations, which Brockett argues was relevant

to explain her state of mind in entering Owens’s garage after fleeing an altercation with her

boyfriend in the middle of the night. As an initial matter, Brockett argues that it was improper for

the trial court to exclude this testimony based on the rules of evidence that address relevance. She

contends, without citation to authority, that “Washington courts have repeatedly held that where

the right to present a defense is implicated, the proper legal standard is not provided by the rules

of evidence, but rather by Darden and Jones.” Br. of Appellant at 29. But Darden and Jones make

clear that there is no constitutional right to present irrelevant evidence, and the question of

relevancy is governed by the rules of evidence. Jones, 168 Wn.2d at 720; Darden, 145 Wn.2d at

622. We reject this argument.

       Brockett also argues that the trial court ruled this testimony was relevant. But the court did

not actually rule that the sought-after testimony was relevant. Defense counsel asked Christine if

it had been easy to raise Brockett, the State objected for relevance, and the court sustained.

Defense counsel explained that she was trying to establish Brockett’s state of mind on the night in

question, and the State objected again, on the basis that Christine did not see Brockett on the night



2
  There has been a recent split of authority about the structure of the legal test for establishing a
violation of the Sixth Amendment right to present a defense. Lee, 188 Wn.2d at 486-93; Clark,
187 Wn.2d at 648-49; Blair, 3 Wn. App. 2d at 350-52; Horn, 3 Wn. App. 2d at 310. We need not
resolve it to decide this case.
                                                 12
No. 51277-7-II


in question and so could not testify to her state of mind at that time. The court replied: “I’m not

sure that that—there may be some relevancy, but I don’t think this witness would be able to testify

to that.” VRP (Vol. II) at 261. Defense counsel explained: “Not as to her frame of mind actually

that night but how she gets under situations of stress.” VRP (Vol. II) at 261. The State objected

for relevance, and the court sustained. Defense counsel did not provide any other information or

offer of proof.

       Viewing the entire exchange in context, it is clear the trial court thought testimony on

Brockett’s state of mind that night may be relevant, but was inadmissible because Christine could

not have personal knowledge of Brockett’s state of mind at the time because she was not present.

ER 602. However, once defense counsel explained she was offering testimony on Brockett’s

general character and how she typically reacts under stress, the court sustained the State’s objection

for relevance. Thus, the court did exclude this evidence because it was not relevant.

       The issue then is whether the court abused its discretion in excluding testimony from

Christine on how Brockett typically reacts in stressful situations based on relevance. Brockett

argues that Christine’s testimony was relevant to her state of mind on that night because it would

have supported Brockett’s version of events—that she only entered the garage to seek refuge

because she was afraid. Brockett contends that it also explained why her behavior that night was

plausible, even if it was inconsistent with how other people would have reacted in that situation.

Brockett asserts Christine’s testimony was also relevant to the issue of whether Brockett had in

fact truthfully confessed to taking items from the garage during questioning by McNew.

Specifically, Brockett argues that Christine’s testimony would have supported Brockett’s




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No. 51277-7-II


suggestion that she was intimidated and flustered by McNew’s questions because Christine would

have described how Brockett is generally paranoid and easily frightened.

       Neither party discusses the specific rules that address character traits. Under ER 404(a),

evidence of a person’s trait of character is generally not admissible to prove action in conformity

therewith. But under an exception in ER 404(a)(1), “[c]haracter of [the] [a]ccused,” “[e]vidence

of a pertinent trait of character offered by an accused” is admissible. Our Supreme Court has held

that the term “pertinent” is synonymous with relevance. City of Kennewick v. Day, 142 Wn.2d 1,

6, 11 P.3d 304 (2000). Thus, a pertinent character trait is one that tends to make the existence of

any material fact more or less probable than it would be without evidence of the character trait.

Id. Reputation evidence that is specifically pertinent or relevant to the mental state element of the

crime is admissible if offered by a criminal defendant. Id. at 8.

       But under ER 405(a), which establishes methods of proving character, “[i]n all cases in

which evidence of character or a trait of character of a person is admissible, proof may be made

by testimony as to reputation.” See also, Day, 142 Wn.2d at 8. Reputation testimony must address

a person’s reputation in the community, and reputation within a person’s family is neither neutral

enough nor sufficiently reflective of a community. State v. Thatch, 126 Wn. App. 297, 315, 106

P.3d 782 (2005). Thus, Brockett did not lay the proper foundation for offering reputation evidence

under ER 405(a) because Christine would only have testified to Brockett’s reputation within her

own family. In addition, the limited information that Christine could properly testify about—

Brockett’s reputation within her own family—was not relevant.

       To the extent that Brockett wanted to introduce evidence of specific instances of conduct

in order to prove a trait of character under ER 405(b), she has not shown that Christine’s testimony


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No. 51277-7-II


about Brockett’s character was relevant to an essential element of a charge or defense as required

under that portion of the rule. Id.

       Because Christine’s proposed testimony lacked foundation to be admitted to establish her

reputation in the community, and it was not otherwise relevant, the trial court did not abuse its

discretion when it excluded the testimony. Nor did exclusion of this testimony violate Brockett’s

constitutional right to present a defense.

                                III. SUFFICIENCY OF THE EVIDENCE

       Brockett argues there was insufficient evidence to support her conviction for residential

burglary because Owens’s garage is not a portion of a dwelling under RCW 9A.04.110(7). We

disagree.

A.     Definition of Dwelling and Standard for Evaluating Sufficiency of the Evidence

       Evidence is sufficient to support a conviction if, viewing the evidence in the light most

favorable to the State, any rational trier of fact could find the essential elements of the crime

beyond a reasonable doubt. State v. Imokawa, 4 Wn. App. 2d 545, 560, 422 P.3d 502 (2018),

review granted, 192 Wn.2d 1016 (2019). A claim of insufficiency admits the truth of the State’s

evidence. Id. We draw all reasonable inferences in favor of the State and interpret them most

strongly against the defendant. Id. Circumstantial evidence and direct evidence carry equal

weight. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). We defer to the trier of fact

on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the

evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).

       A person is guilty of residential burglary if, with intent to commit a crime against a person

or property therein, they enter or remain unlawfully in a dwelling other than a vehicle. RCW


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No. 51277-7-II


9A.52.025(1). A “dwelling” is any building or structure, or a portion thereof, which is used or

ordinarily used by a person for lodging. RCW 9A.04.110(7). Whether a building is a dwelling

“‘turns on all relevant factors and is generally a matter for the jury to decide.’” State v. Hall, 6

Wn. App. 2d 238, 241, 430 P.3d 289 (2018) (quoting State v. McDonald, 123 Wn. App. 85, 91, 96

P.3d 468 (2004)).

B.     There Was Sufficient Evidence for the Jury to Conclude That the Semi-Attached Garage
       Was a Portion of a “Dwelling”

       Here, there was no evidence that anyone was using the garage for lodging. Thus, the issue

is whether the garage constitutes “a portion” of Owens’s house. RCW 9A.04.110(7).

       Washington courts consider spaces that are part of a larger building that is used for lodging

to be a portion of a dwelling. See State v. McPherson, 186 Wn. App. 114, 115-17, 344 P.3d 1283

(2015) (ground-level jewelry store was part of a dwelling because there was an occupied apartment

above it and the only way to access the apartment was through the jewelry store); State v. Neal,

161 Wn. App. 111, 112-15, 249 P.3d 211 (2011) (tool room inside a residential apartment building

was a portion of a dwelling). We have also held that garages connected to dwellings are portions

of the dwellings. State v. Murbach, 68 Wn. App. 509, 513, 843 P.2d 551 (1993).

       In this case, Owens’s garage was attached to the house via a covered, but open, walkway.

The garage had its own door to the outside. But exhibits 2 and 6 show that the house and garage

had a contiguous roof and they appear to share a wall with no space between them. In addition,

there was undisputed testimony that the garage was “absolutely attached to the house, but you do

have to go into the elements to get outside, but it is one piece.” VRP (Vol. I) at 138-39.




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No. 51277-7-II


       Under the facts of this case, there was sufficient evidence for the jury to conclude that

Owens’s garage constituted a portion of a dwelling under RCW 9A.04.110(7).

                              IV. LEGAL FINANCIAL OBLIGATIONS

       Brockett argues the criminal filing fee and the DNA collection fee were improperly

imposed. The State has not responded.

       In 2018, the legislature amended RCW 36.18.020(h), prohibiting the imposition of the

criminal filing fee if a defendant is indigent as defined in RCW 10.101.010(3)(a)-(c). LAWS OF

2018, ch. 269, § 17. The legislature also amended RCW 43.43.7541 in 2015, authorizing the

imposition of a DNA collection fee “unless the state has previously collected the offender’s DNA

as a result of a prior conviction.” LAWS OF 2018, ch. 269, § 18. Our Supreme Court has held that

the 2018 amendments to the legal financial obligations statutes apply to cases pending on direct

review and not final when the amendments were enacted. State v. Ramirez, 191 Wn.2d 732, 747,

426 P.3d 714 (2018).

       The court found Brockett to be indigent for purposes of appeal but did not indicate whether

indigency was based on RCW 10.101.010(3)(a)-(c). And the State has not conceded that Brocket

is indigent under this particular statutory definition. Given the evidence regarding a DNA match

in this case, it is clear Brockett’s DNA has previously been collected. Therefore, we remand to

the sentencing court to address the criminal filing fee and the DNA collection fee by applying the

2018 legislative amendments and our Supreme Court’s holding in Ramirez.




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No. 51277-7-II


                                         CONCLUSION

        We affirm Brockett’s convictions and remand for the trial court to address the criminal

filing fee and DNA collection fee in light of the new legislation and Ramirez.

        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.



                                                    Glasgow, J.
 We concur:



 Melnick, P.J.




 Sutton, J.




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