          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                             NO. 71415-5-1                     r-o
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      Respondent/Cross-Appellant,                DIVISION ONE                      —^




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JASON ALLAN WILLIAMS,                            UNPUBLISHED OPINION                            .;:,-;, C";
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      Appellant/Cross-Respondent.                FILED: June 15, 2015




       Lau, J. — Jason Williams was convicted of one count of residential burglary. He

argues his conviction should be reversed because (1) the State failed to present

sufficient evidence proving Williams committed or intended to commit the underlying

crime of assault, and (2) the trial court abused its discretion when it denied Williams'

motion for a bill of particulars. Because the particular crime intended to be committed

inside the premises is not an element of burglary and the lack of a bill of particulars

caused no unfair prejudice, we affirm the judgment and sentence.

                                          FACTS


       On January 25, 2013, Jason Williams broke into Nicholas Spencer-Berger's

house. Spencer-Berger was watching a movie in his bedroom with his wife while their

two daughters were asleep in the next room. After he heard noises coming from
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downstairs, he called 911 assuming someone was in the house. When Spencer-Berger

left his bedroom, he saw Williams standing nearby at the top of the stairs. Spencer-

Berger yelled at Williams to leave, but Williams remained. Williams was "saying things

that made no sense." Report of Proceedings (RP) (Nov. 13, 2013) at 10. For example,

Williams claimed that Spencer-Berger had been following him, and he continued

demanding that Spencer-Berger give him his keys. But Spencer-Berger had never met

or even seen Williams before. At some point, Spencer-Berger managed to get Williams

downstairs. Spencer-Berger struck Williams and detained him on the ground. Shortly

after, police arrived and detained Williams. Spencer-Berger later found that Williams

had entered the house by throwing a wooden stump through a window in the garage,

and that Williams had emptied the glove box in Spencer-Berger's car.

      On February 1, the State charged Williams by information with one count of

residential burglary under RCW 9A.52.025. On November 12, Williams moved for a bill

of particulars, requesting that the State specify which crimes it believed Williams

intended to commit when he entered Spencer-Berger's house. In response, the State

indicated four crimes it believed Williams intended to commit: assault, disorderly

conduct, theft, and robbery. The court denied Williams' motion for a bill of particulars.

At trial, the prosecutor suggested that the facts supported an inference that Williams

intended to commit either assault or theft. The trial court also included in the jury

instructions the definitions for assault and theft. A jury convicted Williams as charged.

The court sentenced Williams to 43 months of confinement. Williams appeals.
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                                          ANALYSIS


Theft and Assault Jury Instructions

       Williams contends that by instructing the jury on the definition of theft and

assault, the State effectively added these crimes as necessary elements. Therefore, it

was required to prove that he intended "to attempt to or to commit" both theft and

assault. Br. of Appellant at 8. Because the State failed to prove assault or attempted

assault,1 Williams asserts his conviction is unsupported by sufficient evidence and must

be reversed. We disagree.

       Residential burglary occurs when a person unlawfully enters a dwelling with the

intent to commit a crime. RCW 9A.52.025(1) ("A person is guilty of residential burglary

if, with intent to commit a crime against a person or property therein, the person enters

or remains unlawfully in a dwelling other than a vehicle."). But the State need not prove

the specific crime intended to be committed. State v. Bergeron. 105 Wn.2d 1, 16, 711

P.2d 1000 (1985) ("the specific crime or crimes intended to be committed inside

burglarized premises is not an element of burglary that must be included in the

information, jury instructions or in the trial court's findings and conclusions. It is

sufficient if the jury is instructed ... in the language of the burglary statutes."). The trial

court is not precluded from instructing the jury on the specific underlying crime, and it is

sometimes "the better practice" to do so. See State v. Chellv. 32 Wn. App. 916, 920,

651 P.2d 759 (1982). Here, the State proposed and the trial court included the




       1Williams does not dispute the sufficiency of the evidence to prove the intent to
commit theft.

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definitional instructions for theft and assault. The State was not required to prove that

Williams committed or intended to commit theft or assault. Bergeron, 105 Wn.2d at 16.

       Williams argues that under the law of the case doctrine, the State added these

crimes as elements when it failed to object to the inclusion of the theft and assault

instructions. Although Williams correctly asserts that jury instructions not objected to

become the law of the case, typically the State assumes the burden of proving

otherwise unnecessary elements only when those elements are incorporated in the "to

convict" instruction. See State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998)

("Under the doctrine jury instructions not objected to become the law of the case ....

In criminal cases, the State assumes the burden of proving otherwise unnecessary

elements of the offense when such added elements are included without objection in

the 'to convict' instruction.") (citations omitted). The "to convict" instruction here did not

require the jury to find that Williams committed or intended to commit either theft or

assault:


               To convict the defendant of the crime of residential burglary, each
       of the following elements of the crime must be proved beyond a
       reasonable doubt:

              (1) That on or about the 25th day of January, 2013, the defendant
                  entered or remained unlawfully in a dwelling;

              (2) That the entering or remaining was with intent to commit a crime
                  against a person or property therein; and

              (3) That the acts occurred in the State of Washington.

             Ifyou find from the evidence that each of these elements has been
       proved beyond a reasonable doubt, then it will be your duty to return a
       verdict of guilty.



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              On the other hand, if, after weighing all of the evidence you have a
        reasonable doubt as to any one of these elements, then it will be your duty
        to return a verdict of not guilty.

Clerk's Papers (CP) at 51. The "to convict" instruction only required the jury to conclude

that Williams intended to commit "a crime." CP at 51. The law of the case doctrine

does not apply here. Therefore, the State was not required to prove theft and assault.

        Williams notes that we have stated the law of the case doctrine can apply to

definitional instructions in addition to "to convict" instructions. See State v. Calvin. 176

Wn. App. 1, 21, 316 P.3d 496 (2013) ("Although the State argues that the law of the

case doctrine applies only when an element is added to a to-convict instruction, the

doctrine is not limited to that application. It is a broad doctrine that has been applied to

a to-convict instructions and definitional instructions.")2 But the unique circumstances in

Calvin render that case inapplicable here. In Calvin, the defendant was charged with

assault in the third degree and resisting arrest. The trial court initially provided an

instruction defining assault using the phrase "unlawful force":

        "An assault is an act, with unlawful force, done with the intent to create in
        another apprehension and fear of bodily injury

Cajvin, 176 Wn. App. at 20. The jury was confused about the term and asked the trial

court how to define "unlawful force." Calvin, 176 Wn. App. at 20. The trial court

decided to provide a supplemental instruction without the confounding phrase: "An

assault is an act done with the intent to create in another apprehension and fear of

bodily injury . . . ." Calvin, 176 Wn. App. at 21. Calvin argued that, under the law of the




        2 The remaining cases Williams cites involve civil lawsuits and are inapplicable
here.

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case doctrine, the original instruction containing the phrase "unlawful force" added an

element the State was required to prove. Calvin, 176 Wn. App. at 21.

       Although we stated in passing that the law of the case doctrine might apply to

definitional instructions in addition to "to convict" instructions, this statement is dicta

because whether the presence of the phrase "unlawful force" added an element was not

directly at issue in the case:

               The [law of the case] doctrine is based on the premise that whether the
       instruction in question was rightfully or wrongfully given, it was binding and
       conclusive upon the jury. Thus, a party cannot challenge unobjected to jury
       instructions for the first time on appeal, or conversely disavow jury instructions on
       appeal that were acquiesced to below .... Here, an objection preserved the
       issue for review and the jury reached a verdict based on the supplemental
       instruction [rather than the original instruction containing the phrase "unlawful
       force"]. Because the trial court has discretion to give supplemental instructions,
       the issue is not whether the law of the case doctrine bound the State to the
       "unlawful force" language at the time the jury was given instructions. Rather, our
       inquiry is whether the trial court abused its discretion when the jury sought further
       clarification and the trial court identified and corrected a problem.

Calvin, 176 Wn. App. at 22. (citation omitted) (emphasis added). We did not hold in

Calvin that a phrase contained in a definitional instruction increased the State's burden

by adding an otherwise unnecessary element. Calvin is also distinguishable because

the jury instruction at issue there, defined the specific crime with which the defendant

was charged. Here, Williams was not charged with assault or theft. The related

definitional instructions provided examples of crimes the jury could consider when

deciding "the intent to commit a crime against a person or property therein" for burglary.

CP at 51. The State was not required to prove them beyond a reasonable doubt.

       Nor was this an "alternative means" crime, as Williams suggests. An alternative

means crime sets forth "distinct acts that amount to the same crime." State v. Peterson,
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168 Wn.2d 763, 770, 230 P.3d 588 (2010). "When a crime can be committed by

alternative means, express jury unanimity as to the means is not required where each of

the means is supported by substantial evidence." State v. Gonzales, 133 Wn. App. 236,

243, 148 P.3d 1046 (2006). "However, if the evidence is insufficient to support each of

the means, a particularized expression of jury unanimity is required." State v. Sony, 184

Wn. App. 496, 499, 337 P.3d 397 (2014), review denied. 182 Wn.2d 1019 (2015).

Williams argues that the jury was instructed on two alternative means of committing

residential burglary—theft and assault. Therefore, because there was insufficient

evidence to conclude that Williams committed or intended to commit burglary, and

because there was no particularized unanimity instruction indicating the jury agreed that

he committed or intended to commit theft, his conviction must be reversed.

       But, as we recently concluded in Sony, residential burglary is not an alternative

means crime, and it did not become an alternative means crime simply because the trial

court provided examples of crimes the jury might have considered Williams intended to

commit when he entered Spencer-Berger's house. In Sony, we explained that

residential burglary is not an alternative means crime even though it requires that the

State prove the defendant entered a dwelling with the intent to commit a crime against a

person or property:

       The different intents that may be present—"to commit a crime against a
       person" or "to commit a crime against property"—are not distinct acts and
       therefore do not constitute alternative means of committing residential
       burglary. See rstate v. Huvnh.1 175 Wn. App. at 905-06, ("An element
       dealing with a defendant's subjective mental state generally cannot be the
       subject of an alternative means analysis."). Rather, "[t]he intent required
       by our burglary statutes is simply the intent to commit any crime against a
       person or property inside the burglarized premises." State v. Bergeron,
       105Wn.2d 1,4,711 P.2d 1000(1985).

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Sony, 184 Wn. App. at 500. Burglary does not present an alternative means crime by

requiring a jury to find that the defendant intended to commit a crime against a person

or property. By extension, the trial court here did not transform Williams' burglary

charge into an alternative means crime by providing examples of "a crime against a

person or property therein" that the jury might consider. Therefore, the State did not

need to prove that Williams committed or intended to commit either theft or assault, nor

did the jury need to unanimously agree that Williams committed or intended to commit

either of those crimes. See State v. Smith. 159 Wn.2d 778, 790-91, 154 P.3d 873

(2007). The jury only needed to agree that Williams intended to commit "a crime." CP

at 51; Bergeron. 105 Wn.2d at 16.

       Because the State was not required to prove that Williams committed or intended

to commit theft or assault beyond a reasonable doubt, we need not consider whether

sufficient evidence supported those unnecessary elements.

Bill of Particulars

       Williams also argues the trial court erred when it denied his motion for a bill of

particulars. We conclude, however, that the trial court did not abuse its discretion when
it denied the motion because the State provided sufficient notice of the underlying

crimes it intended to present at trial.

       "[Requiring a bill of particulars is discretionary with the trial court and its ruling
will not be disturbed absent a showing of abuse of discretion." State v. Noltie, 116

Wn.2d 831, 844, 809 P.2d 190 (1991). "Where an information does not allege the

nature and extent of the crime with which the defendant is accused, so as to enable the


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defendant to properly prepare his or her defense, a bill of particulars is appropriate."

Bergeron, 105 Wn.2d at 18. "The test in passing on a motion for a bill of particulars

should be whether it is necessary that defendant have the particulars sought in order to

prepare his defense and in order that prejudicial surprise will be avoided." Noltie, 116

Wn.2d at 845 (quoting 1 C. Wright, Federal Practice § 129, at 436-37 (2d ed. 1982)).

       Regardless of whether the information here was so deficient that a bill of

particulars was required, we cannot say any prejudicial surprise occurred. Williams

included a motion in limine requesting a bill of particulars in his trial brief submitted on

November 12, 2013. The State anticipated that Williams might request a bill of

particulars, so it included a response in its own trial briefsubmitted the same day.

Despite its beliefthat a bill of particulars was not required, the State delineated four

underlying crimes Williams either committed or intended to commit: assault, disorderly

conduct, theft, and robbery. At trial, the State presented two of these crimes—theft and

assault—as potential crimes Williams intended to commit when he entered Spencer-

Berger's house. RP (Nov. 14, 2013) at 348. ("Nowhere in here says he has to have

assaulted Nicholas or he has to have assaulted his wife or that he had to steal property

or done so with the intent to do it. He just had to enter with intent to commit a crime

against person or property. Isubmitted three, that evidence supports any of the three.")
Williams was on notice of the State's theory of the case, and therefore the lack of a bill

of particulars caused no prejudice. See Noltie, 116Wn.2d at 845. ("Nothing in the
record indicates what information, beyond that provided to the defense, could have

been furnished to give additional notice of the charges."). Because the State gave
Williams notice ofthe specific allegations and he was not unfairly surprised at trial, the

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trial court did not abuse its discretion when it denied Williams' motion for a bill of

particulars. Noltie, 116 Wn.2d at 845.

                                       CONCLUSION


       Because the jury instructions defining theft and assault did not add any

necessary elements the State was required to prove, and because Williams was not

prejudiced by the trial court's decision to deny his motion for a bill of particulars, we

affirm the judgment and sentence.




WE CONCUR:




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