                                                                              FILED 

                                                                           April 22, 2014 

                                                                  In the Office of the Clerk of Court 

                                                                WA State Court of Appeals, Division III 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


STATE OF WASHINGTON,                           )         No. 32154-1-111
                                               )
                       Respondent,             )
                                               )
               v.                              )
                                               )
ISAIAH NEWTON, JR.,                            )         UNPUBLISHED OPINION
                                               )
                       Appellant.              )

      BROWN, J.-Isaiah William Newton Jr. appeals his convictions for first degree

burglary and resisting arrest. But his briefing does not mention his resisting arrest

conviction, except one.sentence suggesting cumulative error based on prosecutorial

misconduct infected the entire trial. At the outset, we disagree with his suggestion and

affirm his resisting arrest conviction. However, he persuasively contends insufficient

evidence supports the burglary element of intent to commit a crime, an error

unders~oring   his interrelated concerns over the trial court's decision to give the pattern

inference of intent jury instruction. Because his evidence sufficiency challenge is

dispositive, we do not reach his other error claims or pro se statement of additional

grounds for review. Therefore, we reverse his burglary conviction and remand to

dismiss that charge.
No. 32154-1-111
State v. Newton

                                           FACTS

         The State charged Mr. Newton with first degree burglary and resisting arrest.

Generally, while in a hallucinogenic state and believing God had instructed him his

mother could walk, Mr. Newton, with later disputed permission, climbed through a

bedroom window of his disabled mother, Volinda Williams. Ms. Williams fell when he

tried to get her to walk. Mr. Newton resisted Tacoma police who responded to the

scene. Both Ms. Williams, who rents her bedroom from Kathie Cooper, and Ms. Cooper

gave exculpating trial testimony that contradicted their initial reports to police. Mr.

Newton visited Ms. Williams in her bedroom up to four times a day, helping her in and

out of her bed and wheelchair, assisting her in getting dressed, and bringing her food.

Ms. Williams cannot walk unassisted and has been confined to a wheelchair about 20

years.

         Specifically, beginning at 12:51 a.m. on May 18, 2012, Mr. Newton called Ms.

Williams three times. In the first and second phone calls, he said he wanted to visit her

and she told him not to come over until morning. In the third phone call, "[h]e was

talking crazy," saying he wanted to share with her that he spoke with God, who told him

she could walk. Report of Proceedings (RP) at 62. He told her he was under the

influence of a controlled substance that the State later argued was the hallucinogen

phencyclidine, commonly known as PCP. She again told him not to come over until

morning. Soon, Mr. Newton began pounding on the front door and ringing the doorbell

to Ms. Cooper's duplex unit while yelling "mama!" RP at 63. He then went to Ms.

Williams' bedroom window, which was closed but not completely secure. He said in a


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No. 32154-1-111
State v. Newton

"drunken" voice that "[h]e wanted [her] to open the window because ... God and he had

been talking and ... [she] could walk again." RP at 64. She noticed his face was "[n]ot

normal, ... not right." RP at 103. She initially refused to open the window for him.

       Ms. Williams' and Ms. Cooper's testimony diverged from the police reports. Ms.

Williams related no one refused her son entry at the front door. Likewise, Ms. Cooper

related she did not do so. Police contradicted these assertions, testifying she told them

otherwise upon interview. More importantly, Ms. Williams said she refused to open the

window for her son solely because she was in bed and could not reach it. The State

asked Ms. Williams on direct examination, "So did [Mr. Newton] open the window?" RP

at 66. She answered, "I let him know to open the window if he wanted to come in

because I couldn't get out of bed to do that." RP at 66. She later reiterated how she

told him "he could come in through my bedroom window ... [i]f he could open it," RP at

84, "he could open the window [and] ... come in my room." RP at 99. On cross-

examination, she elaborated, "I had more or less invited him in to stop him from being

out there, and being loud and bothering people, waking people. It was early in the

morning." RP at 100. Thus, she claimed she consented to appease him. Ms. Williams

claimed she initially told this to police, but their testimony contradicted her assertion.

       According to Ms. Williams, once inside the window, Mr. Newton told her she

could walk. She asked him to help her to the restroom by following normal procedures.

But "[h]e was convinced that [she] could walk." RP at 69. Insistent and all the while

repeating God said she could walk, Mr. Newton placed his arms around Ms. Williams

and tried lifting her to her feet so she could walk. After a few attempts, they both fell to

                                              3

No. 32154-1-111
State v. Newton

the ground. The incident accidentally tore her nightgown, shattered her drinking glass,

and knocked over her television and some trinkets. Ms. Williams yelled for help. Mr.

Newton repeatedly tried lifting her but was unsuccessful because she is a self-described

"big woman" or "big lady." RP at 72, 88, 104. Agitated and wanting to get his attention,

she claims she hit and kicked him while telling him to stop and get help. He did not

listen. Eventually, Mr. Newton helped Ms. Williams to a feeble standing position,

clinging to the doorframe. Afraid of falling again, Ms. Williams asked her son to help her

maneuver into her wheelchair. He did not comply with her request, instead standing still

and insisting, "Mama, you can walk. God told me you can walk." RP at 76.

      Ms. Cooper responded to the screaming and saw Ms. Williams clinging to the

wall. She returned to her bedroom and called 911 emergency response, staying there

during the entire phone call because she was afraid of Mr. Newton's unstable behavior.

Neighbor David Price saw Mr. Newton run to the front door and bang and kick it while

hollering for Ms. Williams to open it. Mr. Price soon heard a crash and Ms. Williams

screaming to Mr. Newton, "Stop, let me go." RP at 393. At the window, Mr. Price saw

Mr. Newton "wrestling" with Ms. Williams, "trying to make her stand on her feet." RP at

395. Because of her disability, his efforts had the result of "picking her up and dropping

her, picking her up and dropping her." RP at 395. While doing so, Mr. Newton was

telling Ms. Williams to walk, yelling loudly, "By the blood of Jesus you can walk, mama."

RP at 395. Mr. Price testified, "he was having some kind of episode, or he wasn't really

with it." RP at 396. All the while, Ms. Williams was screaming to Mr. Newton, "Let me

go," "Stop. Stop. You're hurting me. You're hurting me." RP at 396,403. But he kept

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No. 32154-1-111
State v. Newton

insisting God had told him she could walk. Neighbor Frank Givens joined Mr. Price at

the scene. He saw and heard much the same as Mr. Price, and dialed 911.

       Police arrived and twice ordered Mr. Newton to release Ms. Williams but, given

his mental state, he did not comply. Officer Robert Hannity deployed an electroshock

weapon against him and, after a struggle, soon handcuffed him with the help of officers

Travis Waddell and Eric Chell. Throughout this encounter Mr. Newton was screaming,

"Mom, mom, you don't need you [sic] wheelchair. You don't need your chair. You don't

need it anymore. You don't need your wheelchair, mom." RP at 291.

       Ms. Williams was crying and nearly hysterical but was not injured. Officer

Hannity reported Mr. Newton "opened that window and unlawfully entered her

apartment by climbing in the window." RP at 308. But Officer Hannity admitted he

supplied the word "unlawfully." While Officer Hannity reported Mr. Newton had

snatched Ms. Williams out of her wheelchair by her neck, he found no sign of strangling.

       Mr. Newton did not testify at trial. At the close of the State's evidence, he moved

to dismiss the first degree burglary charge for insufficient evidence. He focused his

challenge on the element of intent to commit a crime without contesting the element of

entering or remaining unlawfully in a building. Mr. Newton explained neither his

belligerence nor the eventual assaultive touching and property damage proves he had

formed the required intent to commit a crime at the time he opened and climbed through

the window, or when he remained in Ms. Williams' bedroom. The trial court denied his

motion without explanation. Then, over his repeated objection, the court gave the

pattern inference of intent jury instruction, declaring,

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No. 32154-1-111
State v. Newton

           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.

Clerk's Papers (CP) at 29; accord 11A WASHINGTON PRACTICE: WASHINGTON PATIERN

JURY INSTRUCTIONS: CRIMINAL (WPIC) 60.05, at 15 (3d ed. 2008); see also RCW

9A52.040. 1 Again, Mr. Newton explained the State did not show his alleged intent to

commit a crime flowed more likely than not from entering or remaining unlawfully in Ms.

Williams' bedroom. The court reasoned the inference's permissive nature eliminated

his concerns, apparently feeling unbound by State v. Sandoval, 123 Wn. App. 1, 94

P.3d 323 (1994), and the judicial opinions it cites.

       In closing and rebuttal arguments, the State argued it had proved the element of

intent to commit a crime by showing Mr. Newton intentionally assaulted Ms. Williams

and caused property damage. Further, the State extensively argued witness credibility

without objection. Over pages of the record, the State thematically argued about lies,

lying, and liars in a manner we think was improper, but which does not affect the

dispositive evidence insufficiency.2



        1 Additionally, the trial court gave the pattern voluntary intoxication jury
instruction, declaring, "No act committed by a person while in a state of voluntary
intoxication is less criminal by reason of that condition. However, evidence of
intoxication may be considered in determining whether the defendant acted intentionally
or knowingly." CP at 30; accord 11 WPIC 18.10, at 282; see also RCW 9A16.090.
        2 Our decision to reverse Mr. Newton's burglary conviction and dismiss the
burglary charge would limit our prosecutorial misconduct and cumulative error analyses
to his resisting arrest conviction. But any errors, considered individually or cumulatively,
are not substantially likely to affect the jury's verdict on the resisting arrest charge
because they concern his burglary conviction solely and ample evidence supports his
resisting arrest conviction. Therefore, we would conclude he received a fair trial.
                                             6

No. 32154-1-111
State v. Newton

          The jury found Mr. Newton guilty as charged. He appealed.

                                          ANALYSIS

          The dispositive issue is whether sufficient evidence supports Mr. Newton's first

degree burglary conviction. He contends the State failed to prove he entered or

remained unlawfully in Ms. Williams' bedroom with intent to commit a crime.

       The State must prove all essential elements of a charged crime beyond a

reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068,25 L. Ed. 2d 368

(1970). And, double jeopardy principles prohibit the State from trying a criminal

defendant a second time if it failed to muster sufficient evidence the first time. Burks v.

United States, 437 U.S. 1, 11, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978).

       Evidence is sufficient to support a guilty finding if '''after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.'" State v. Green, 94 Wn.2d

216,221,616 P.2d 628 (1980) (emphasis omitted) (quoting Jackson v. Virginia, 443

U.S. 307,319,99 S. Ct. 2781,61 L. Ed. 2d 560 (1979)). An evidence sufficiency

challenge "admits the truth of the State's evidence and all inferences that reasonably

can be drawn therefrom." State v. Salinas, 119 Wn.2d 192,201,829 P.2d 1068 (1992).

We defer to the jury's assessment of conflicting testimony, witness credibility, and

evidence weight. State v. Carver, 113 Wn.2d 591, 604, 781 P.2d 1308, 789 P .2d 306

(1989).

      The essential elements of first degree burglary include "enter[ing] or remain[ing]

unlawfully in a building" "with intent to commit a crime against a person or property

                                              7

No. 32154-1-111
State v. Newton

therein." RCW 9A.52.020(1)(b). A person enters or remains unlawfully in a building

"when he or she is not then licensed, invited, or otherwise privileged to so enter or

remain." RCW 9A.52.010(5). A person acts with intent to commit a crime "when he or

she acts with the objective or purpose to accomplish a result which constitutes a crime."

RCW 9A.08.010(1)(a). Generally, inferences are disfavored in criminal law. State v.

Cantu, 156Wn.2d 819, 826,132 P.3d 725 (2006). A jury may, however, infer the

defendant's specific criminal intent from his or her conduct if it is not "'patently

equivocal'" and instead '''plainly indicates such intent as a matter of logical probability.'"

State v. Bergeron, 105 Wn.2d 1,20,711 P.2d 1000 (1985) (quoting State v. Bergeron,

38 Wn. App. 416, 419, 685 P.2d 648 (1984),aff'd, 105 Wn.2d 1»; see State v. Lewis,

69Wn.2d 120, 124,417 P.2d 618 (1966).

       Mr. Newton argues the State did not prove the element of intent to commit a

crime. We agree. While a rational jury could, viewing the evidence in the light most

favorable to the State, find he entered or remained unlawfully in Ms. Williams' bedroom

beyond a reasonable doubt, no evidence shows his intent was anything other than to

show her she could walk. Neither his belligerence nor the eventual assaultive touching

and property damage proves he had formed the required intent to commit a crime at the

time he opened and climbed through the window, or when he remained in her bedroom.

No evidence shows he entered or remained unlawfully in her bedroom with the objective

or purpose to accomplish a result constituting a crime. The jury could not infer his

specific criminal intent from his conduct because it does not plainly indicate such intent

as a matter of logical probability. A rational jury could not, viewing the evidence in the

                                              8

No. 32154-1-111
State v. Newton

light most favorable to the State, find the element of intent to commit a crime beyond a

reasonable doubt. Cf. State v. Woods, 63 Wn. App. 588, 591-92, 821 P.2d 1235

(1991). Thus, we conclude insufficient evidence supports Mr. Newton's first degree

burglary conviction. Accordingly, we reverse his burglary conviction and remand to

dismiss that charge.

       ConSidering our holding, we acknowledge Mr. Newton's interrelated concern

regarding the permissive inference instruction to stress the due process risks of giving

it. In a burglary prosecution, this instruction allows the jury to infer the defendant's

alleged intent to commit a crime from his or her act of entering or remaining unlawfully

in a building. See WPIC 60.05, at 15; see also RCW 9A.52.040. The trial court may,

with caution, give this instruction if the State shows the defendant's alleged intent flows

more likely than not from his or her act, and the inference is not the sole evidence of

intent. State v. Brunson, 128 Wn.2d 98, 107-12,905 P.2d 346 (1995); WPIC 60.05 note

on use & cmt. at 15; see State v. Drum, 168 Wn.2d 23,36,225 P.3d 237 (2010); State

v. Deal, 128 Wn.2d 693, 700, 911 P.2d 996 (1996); State v. Jackson, 112 Wn.2d 867,

875,774 P.2d 1211 (1989); see also County Court v. Allen, 442 U.S. 140, 165-67,99 S.

Ct. 2213, 60 LEd. 2d 777 (1979). Where, as here, the inference is the sole evidence

of intent, the State must show the defendant's alleged intent flows beyond a reasonable

doubt from his or her act. Brunson, 128 Wn.2d at 107, 109, 110-11; WPIC 60.05 note

on use & cmt. at 15; see Drum, 168 Wn.2d at 35-36; Deal, 128 Wn.2d at 700 & n.4;

Jackson, 112 Wn.2d at 875; see also Allen, 442 U.S. at 166-67.




                                              9

No. 32154-1-111
State v. Newton

       In Sandoval, 123 Wn. App. 1, the trial court erred by giving the inference of intent

instruction. While intoxicated by alcohol, the defendant kicked open the door of a

stranger's residence, apparently mistaking it for his own. Id. at 3,5. The occupant

confronted the defendant inside. Id. Surprised, the defendant shoved the occupant. Id.

The Sandoval court concluded "there is no fact, alone or in conjunction with others, from

which [the defendant's alleged] intent to commit a crime more likely than not could flow."

Id. at 5. The State did not show his alleged intent to commit a crime flowed more likely

than not from his act of entering or remaining unlawfully in a stranger's residence. Id.

       Mr. Newton's case is somewhat similar to Sandoval. While under the influence

of PCP, he opened and climbed through the window to Ms. Williams' bedroom without

guise. He tried to get her to walk because he believed God had answered his prayers

and enabled her to do so. "He was convinced that [she] could walk." RP at 69. He

committed the assaultive touching solely in his surprised attempt to show her she could

walk. He did not express animus towards her. He did not try to sneak in or flee from

her bedroom, was not wearing clothes or carrying tools associated with burglary crimes,

and made no effort to take or consciously destroy property. No fact exists, alone or in

conjunction with others, from which his alleged intent to commit a crime could flow

beyond a reasonable doubt. The State did not show his alleged intent to commit a

crime flowed beyond a reasonable doubt from his act of entering or remaining unlawfully

in her bedroom. The trial court erred by giving the inference of intent instruction.

       Because Mr. Newton's evidence sufficiency challenge is dispositive, we do not

address his remaining contentions.

                                            10
No. 32154-1-111
State v. Newton

      Affirmed in part. Reversed and remanded in part.

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




2;~~>er
Siddoway, C.J.                                    Lawrence-Berrey. J.   \




                                           11 

