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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                      DIVISION ONE

jSTATE OF WASHINGTON,                            No. 71159-8-1

                        Respondent,

              v.                                 UNPUBLISHED OPINION


TAMAS HIBSZKI,

                        Appellant.               FILED: April 13, 2015

       Schindler, J. — A jury convicted Tamas Hibszki of burglary in the second

degree and theft in the second degree. Hibszki appeals, arguing he is entitled to

reversal of his conviction for burglary in the second degree because insufficient

Evidence supports finding that he unlawfully entered or remained in a building. Hibszki
also challenges the jury instructions on accomplice liability. We affirm.

                                          FACTS

      At around 2:30 a.m. on July 26, 2010, Washington Department of Fish and

Wildlife Sergeant Erik Olson observed a small boat with two occupants land at a boat

launch under the West Seattle Bridge. The boat did not have a visible registration

pumber or navigation lights. Sergeant Olson approached the boat and asked the two
occupants for identification. Tamas Hibszki identified himself as the owner of the boat.

The passenger identified himself as Justin Michael Stoltman. Sergeant Olson saw "a lot
No. 71159-8-1/2


|of cabling that was wound up" and two duffle bags in the bottom of the boat. The duffle

bags had "tool[s] sticking out        [B]olt cutters and wire cutters." Hibszki and Stoltman

told Sergeant Olson they were "recycling the cabling off abandoned . . . pilings." Based

on the description of the pilings, Sergeant Olson called the Port of Seattle Police

(Department. The Port of Seattle police confiscated the cables but did not arrest Hibszki
or Stoltman. Sergeant Olson gave Hibszki and Stoltman "a warning for the registration

and the boating safety violations."

       At approximately 2:30 a.m. on July 27, Sergeant Olson saw Hibszki and Stoltman

on the Duwamish River. As Sergeant Olson pulled his patrol boat up to Hibszki's boat,

he observed "a very large metal pipe, really big . . . metal tube or valve that was right in

the middle of the boat." Sergeant Olson estimated the pipe valve weighed

Approximately 35 to 40 pounds. Sergeant Olson questioned Hibszki and Stoltman
separately about the valve. Stoltman told Sergeant Olson he did not know where the

pipe valve came from and it was "on the boat when they launched." Hibszki claimed "a

friend of his gave it to him."

       Hibszki and Stoltman agreed to let Sergeant Olson search their duffle bags.

Sergeant Olson found seven red valve handles inside Stoltman's duffle bag. Hibszki's

bag contained "copper and brass fittings." Sergeant Olson suspected the items had

been taken from a larger vessel and confiscated the pipe valve and the two bags.

Sergeant Olson released Hibszki and Stoltman but continued to investigate.

       Sergeant Olson saw "a very large freighter-type vessel" a couple hundred yards

up the Duwamish River that matched the paint color of some of the items seized from

Hibszki and Stoltman. Testimony at trial established the vessel was built in 1945 and is
No. 71159-8-1/3



approximately 100 feet long and at least 50 feet tall. Several hatches on the vessel

were open, and Sergeant Olson said that was "unusual." Sergeant Olson testified that

the vessel was "permanently affixed" to pilings in the river, and that he had previously

seen several barges carrying "different kinds of products" tied up to the vessel.

       Sergeant Olson boarded the vessel and climbed down one of the hatches "into

the bowels of the ship." Seven valve handles were missing from the engine manifold in

the engine room. The three remaining red handles were identical to the seven handles

Sergeant Olson found in Stoltman's duffle bag. Sergeant Olson said it appeared copper

and brass fittings and tubing had been recently removed from panels in another room.

Sergeant Olson dusted for fingerprints and found a palm print belonging to David

Roberts on one of the panels.

       The State charged Hibszki and Stoltman by amended information with burglary in

the second degree, theft in the second degree, and malicious mischief in the second

degree.1 The State gave Roberts immunity in exchange for his testimony at trial.

       A number of witnesses testified during the four-day jury trial, including Sergeant

Olson and Roberts. Hibszki denied he was in the vessel and claimed someone else,

possibly Roberts, had given him the items to sell.

       Vice President of Island Tug and Barge Company, Jonathan Anderson, testified

that his company uses the vessel "for our barge storage for.. . our company." Island

Tug and Barge is a "freight forwarding company" that transports cargo such as sand

and gravel all over the world "by barges." Anderson testified that after the company

purchased the vessel six or seven years ago, they removed "the main propulsion



       1The State also charged Stoltman with unlawful possession of heroin.
                                                 3
    No. 71159-8-1/4


    system" and permanently anchored the vessel to the bottom of the Duwamish River

    using "spuds," large pipes drilled into the riverbed.

           Anderson testified the vessel was used as moorage to "secure our vessels."

    Anderson said that Island Tug and Barge has "45 pieces of equipment that we're trying

    to tie up." Anderson testified the vessel was large enough to accommodate four barges

    at a time and the barges often contained goods, including "[crushed] trucks, frozen stuff,

    whatever we had on the barge at the time." Anderson stated Island Tug and Barge did
i

    not permit anyone to enter the vessel without permission, including employees.

           Anderson testified that Island Tug and Barge left "equipment on the vessel" that it

    could use to pull the spuds out to move the vessel. Anderson explained the equipment

    that had been stolen or damaged in the burglary destroyed "a lot of our systems."

           They pulled the generator apart and got inside the windings and removed
           the windings of the generator, which is all copper. They had gotten into
           the main panel, opened up the main panel and taken our breakers and
           then taken out all the wire going to the main panel that helped us make
           power so we could do stuff with the equipment.

           Anderson testified that seven of the handles were removed from the transfer

    manifold and, as a result, he could no longer operate the valves to transfer fluids from

    one part of the vessel to another. Anderson said that "some of the valves and tanks"

    had also been removed.


           Anderson testified that there was a crane on the deck of the vessel that the

    company used to "move stuff around." Because the crane was "tied in with the

    hydraulic system and the fuel system and the air system" that were all damaged in the

    burglary, the crane was no longer operational.
No. 71159-8-1/5


       Valve expert James Kramer testified that the pipe valve recovered from Hibszki's

boat was a "3-and-a-half inch, 150-pound flanged bronze swing check valve." Kramer

said valve manufacturers "stopped producing that size [valve] decades ago," and

estimated it would cost between $2,000 and $2,500 to purchase a similar valve.

       Roberts testified that he used to "break into trucks, break into businesses,

basically steal as much copper, brass, [and] metal" as he could, and then sell it to scrap

yards to support his methamphetamine addiction. Roberts testified that he, Hibszki, and

Stoltman stole metal from the vessel several times, including the night in July of 2010

when they stole the large pipe valve. Roberts testified that they were on the vessel

"[m]ost of the night." Roberts said he "[c]ut copper wires out of walls, disconnected

brass valves and pipes, copper pipes, [and] cut metal out of the boat." Roberts testified

Ithat he helped Hibszki "unbolt" the large valve that was "in the ceiling of the boat."

Roberts said it took a while to unbolt the valve because "the bolts were rusted and

painted." Roberts testified that he, Hibszki, and Stoltman each left the vessel "with a

duffle bag full of metal."

       At the conclusion of the State's case, the defense moved to dismiss the burglary

charge on the grounds that the State had not presented "enough evidence to describe

this ship as a building, for one to conclude beyond reasonable doubt that it's a building."

The defense attorney conceded the vessel was a "structure" but argued it was not a

"building" because it was basically a "dock or a pier" and was not being used to store or

sell "goods." The court denied the motion. The court ruled that "using the expansive

definitions given in other cases . . . , one may refer to this particular structure as a

building."
No. 71159-8-1/6


       The court used 11 Washington Practice: Washington Pattern Jury Instructions:

priminal (3d ed. 2008) (WPIC) to instruct the jury on the elements of the crimes,

reasonable doubt, and accomplice liability. Hibszki's attorney proposed omitting the

"abiding belief" language from the reasonable doubt instruction but did not otherwise

object to the jury instructions. The jury instruction defining "building" states:

              Building, in addition to its ordinary meaning, includes any dwelling,
       fenced area, railway car, or cargo container. Building also includes any
       other structure used for lodging of persons or for carrying on business
       therein or the use, sale or deposit of goods.

       During closing, the prosecutor argued the vessel was a structure used to store

goods. The prosecutor also argued that Hibszki and Stoltman "acted together."

       The defendants acted together as an accomplice. Whether you think that
       one defendant took the 40-pound valve .... or that the other defendant
       took the wheel handles, it doesn't matter. They acted together. They are
       an accomplice and they are both guilty of that crime.

       Hibszki's attorney argued that because the vessel did not meet the definition for

a building, the jury should find him not guilty of burglary. The attorney also argued there

was no evidence Hibszki was guilty as a principal or as an accomplice to the burglary.

The attorney claimed that even if Roberts gave Hibszki the items to sell, that did not

make Hibszki an accomplice any more "than if these things had ended up at the scrap

yard," and "the guy [at the scrap yard] taking the stuff is not an accomplice to a

burglary."
No. 71159-8-1/7


       The jury found Hibszki not guilty of malicious mischief in the second degree. The

jury found Hibszki guilty of burglary in the second degree and theft in the second

degree.2 The court imposed a standard range sentence of 10 months.

                                              ANALYSIS

Burglary Conviction

        Hibszki contends insufficient evidence supports the conviction for burglary in the

second degree. Hibszki asserts the State failed to establish that the vessel was a

"building" as defined by RCW 9A.04.110(5).

        Under the Fourteenth Amendment and the Sixth Amendment of the United

States Constitution and article I, section 21 of the Washington State Constitution, a

criminal defendant is entitled to " 'a jury determination that [he] is guilty of every element

of the crime with which he is charged, beyond a reasonable doubt.'" Apprendi v. New

Jersey. 530 U.S. 466, 476-77, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)3 (quoting

United States v. Gaudin. 515 U.S. 506. 510, 115 S. Ct. 2310, 132 L Ed. 2d 444 (1995)).

The State has the burden of proving the elements of a crime beyond a reasonable

doubt. In re Winship. 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State

v. Borrero. 147 Wn.2d 353, 364, 58 P.3d 245 (2002).

        In deciding whether sufficient evidence supports a conviction, we must view the

evidence in the light most favorable to the State to determine whether any rational trier

of fact could have found the essential elements of the crime beyond a reasonable

doubt. State v. Salinas. 119 Wn.2d 192. 201. 829 P.2d 1068 (1992). A challenge to the


       2The jury found Stoltman not guilty of malicious mischief in the second degree. The jury found
Stoltman guilty of burglary in the second degree, theft in the second degree, and violation of the Uniform
Controlled Substances Act, chapter 69.50 RCW.
        3 Alteration in original.
No. 71159-8-1/8


[sufficiency of the evidence admits the truth of the State's evidence. Salinas. 119 Wn.2d

at 201. "[A]ll reasonable inferences from the evidence must be drawn in favor of the

State and interpreted most strongly against the defendant." Salinas. 119 Wn.2d at 201.

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), abrogated in part on other grounds bv Crawford v. Washington. 541

U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

       The meaning of a statute is a question of law subject to de novo review. State v.

Ervin. 169 Wn.2d 815, 820, 239 P.3d 354 (2010). The authority to define the elements

of a crime "rests firmly with the legislature." State v. Torres Ramos. 149 Wn. App. 266,

271, 202 P.3d 383 (2009); State v. Evans. 154 Wn.2d 438, 447 n.2, 114 P.3d 627

(2005). When interpreting a statute, our primary objective is to ascertain the intent of

the legislature. State v. Kintz. 169 Wn.2d 537, 547, 238 P.3d 470 (2010); State v.

Gonzalez. 168 Wn.2d 256, 263, 226 P.3d 131 (2010). In determining legislative intent,

we must give effect to the plain language of an unambiguous statute. See State v.

Bunker. 169 Wn.2d 571, 577-78, 238 P.3d 487 (2010); Gonzalez. 168 Wn.2d at 263;

State v. Jacobs. 154 Wn.2d 596, 600-01, 115 P.3d 281 (2005). Language is

unambiguous if it is not susceptible to two or more reasonable interpretations. State v.

Delgado. 148 Wn.2d 723, 726-27, 63 P.3d 792 (2003). If the plain language of the

statute is unambiguous, the inquiry is at an end, and we enforce the statute "in

accordance with its plain meaning." State v. Armendariz. 160 Wn.2d 106, 110, 156

P.3d 201 (2007). "When a statutory term is undefined, the words of a statute are given




                                              8
No. 71159-8-1/9


their ordinary meaning, and the court may look to a dictionary for such meaning."

Gonzalez. 168 Wn.2d at 263.

       A person commits the crime 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." RCW 9A.52.030(1). RCW

9A.04.110(5) defines "building" as follows:

       "Building," in addition to its ordinary meaning, includes any dwelling,
       fenced area, vehicle, railway car, 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 of a building consisting of two or
       more units separately secured or occupied is a separate building.

       RCW 9A.04.110 does not define "structure" or "goods." Webster's Third New

International Dictionary 2267 (2002) defines a "structure" as "something constructed or

built." "Goods" are defined as "tangible movable personal property" or "chattels, wares,

merchandise." Webster's Third New International Dictionary, at 978.

       Washington cases have broadly interpreted the definition of "building" under

RCW 9A.04.110(5). See, §£,, State v. Johnson. 159 Wn. App. 766, 772, 247 P.3d 11

(2011) (holding even if a locomotive is not a "railway car" it still qualifies as a "building"

under the ordinary meaning of the term); State v. Tyson. 33 Wn. App. 859, 862-63, 658

P.2d 55 (1983) (holding a semitrailer attached to a truck tractor and parked in a freight

terminal is a "building" because it is either a cargo container or "other structure used for

the deposit of goods").

       Hibszki contends insufficient evidence supports his burglary conviction because

the State did not prove beyond a reasonable doubt that he entered or remained

unlawfully in a "building." Viewed in the light most favorable to the State, sufficient
No. 71159-8-1/10


evidence supports the conclusion that the vessel was a "building" under RCW

9A.04.110(5). Testimony at trial established that the vessel was "permanently affixed"

to spuds or large pipes embedded in the bottom of the river. Anderson testified that

Island Tug and Barge used the vessel as "storage" to secure barges. Anderson testified

that the barges tied up to the vessel often contained goods like sand, gravel, and

crushed trucks. The testimony at trial also established that the vessel had valuable

equipment and salvageable materials on board, including generators, breakers, copper

wiring and pipes, brass valves, and an operational crane that Island Tug and Barge

could use to "move stuff around."

       Because a jury could reasonably infer from this testimony that the vessel was a

"structure" used for the "use, sale, or deposit of goods," RCW 9A.04.110(5), we

conclude sufficient evidence supports Hibszki's conviction for burglary in the second

degree.

Jury Instructions

       Hibszki asserts the jury instructions did not clearly state that the State has the

burden of proving accomplice liability beyond a reasonable doubt.

       We review a challenge to a jury instruction de novo, evaluating the jury

instruction "in the context of the instructions as a whole." State v. Bennett. 161 Wn.2d

303, 307, 165 P.3d 1241 (2007). " 'Jury instructions are sufficient when they allow

counsel to argue their theory of the case, are not misleading, and when read as a whole

properly inform the trier of fact of the applicable law.'" Keller v. City of Spokane, 146

Wn.2d 237, 249, 44 P.3d 845 (2002) (quoting Bodin v. City of Stanwood. 130 Wn.2d

726, 732, 927 P.2d 240 (1996)). If a jury instruction correctly states the law, the trial


                                             10
No. 71159-8-1/11


court's decision to give the instruction will not be disturbed absent an abuse of

discretion. State v. Aguirre. 168 Wn.2d 350, 364, 229 P.3d 669 (2010). Jury

instructions that relieve the State of its burden of proof may be challenged for the first

time on appeal. State v. O'Hara. 167Wn.2d91, 100-01. 217 P.3d 756 (2009): State v.

Peters. 163 Wn. App. 836, 847, 261 P.3d 199 (2011).

       There is no dispute that the jury instructions accurately informed the jury of the

State's burden of proof. The "to convict" instructions also accurately state the

necessary elements to find "the defendant" or "defendant Hibszki" guilty of the crimes of

burglary in the second degree, theft in the second degree, and malicious mischief in the

second degree.

       The jury instructions defined accomplice liability based on 11 WPIC 10.51, at

217. Jury instruction 7 states:

               A person is guilty of a crime if it is committed by the conduct of
       another person for which he or she is legally accountable. A person is
       legally accountable for the conduct of another person when he or she is
       an accomplice of such other person in the commission of the crime.
               A person is an accomplice in the commission of a crime if, with
       knowledge that it will promote or facilitate the commission of the crime, he
       or she either:
              (1) solicits, commands, encourages, or requests another person to
       commit the crime; or
              (2) aids or agrees to aid another person in planning or committing
       the crime.
               The word "aid" means all assistance whether given by words, acts,
       encouragement, support, or presence. A person who is present at the
       scene and ready to assist by his or her presence is aiding in the
       commission of the crime. However, more than mere presence and
       knowledge of the criminal activity of another must be shown to establish
       that a person present is an accomplice.
               A person who is an accomplice in the commission of a crime is
       guilty of that crime whether present at the scene or not.




                                             11
No. 71159-8-1/12


      The court also gave a cautionary instruction on accomplice testimony based on

11 WPIC 6.05, at 184. Jury instruction 8 states:

             If you believe Mr. Roberts to have been an accomplice, such
      testimony given on behalf of the State, should be subjected to careful
      examination in the light of other evidence in the case, and should be acted
      upon with great caution. You should not find the defendant guilty upon
      such testimony alone unless, after carefully considering the testimony, you
      are satisfied beyond a reasonable doubt of its truth.

       Hibszki concedes accomplice liability is not an element of the crime that must be

included in the "to convict" instruction. Hibszki contends that because the accomplice

liability instruction "was completely silent as to the State's burden of proof," and the "to

convict" instructions did not incorporate accomplice liability language, the jury

instructions improperly relieved the State of its burden of proving accomplice liability

beyond a reasonable doubt.

       This court considered and rejected a similar argument in State v. Teal. 117 Wn.

App. 831, 73 P.3d 402 (2003). In Teal, although the accomplice liability instruction did

not refer to the reasonable doubt standard, and the "to convict" instruction did not

incorporate accomplice liability language, we concluded that as a whole, the jury

instructions satisfied due process and did not relieve the State of its burden of proof.

Teal. 117 Wn. App. at 839-40.

       "Considered as a whole, the instructions required the jury to determine
       defendant's liability as an accomplice in light of the elements of the
       principal crimes in the perpetration of which such liability arose and under
       the overall requirement that criminal liability must be proved beyond a
       reasonable doubt. There was no error."

Teal. 117 Wn. App. at 841 (quoting State v. Teaford. 31 Wn. App. 496, 500, 644 P.2d

136(1982)).




                                              12
No. 71159-8-1/13



       Here, as in Teal, the instructions required the State to prove the elements of the

crimes and accomplice liability beyond a reasonable doubt. Considered as a whole, the

jury instructions correctly informed the jury of the State's burden of proof with regard to

accomplice liability.

       Hibszki also argues that because the information did not charge him as an

accomplice, the court erred by instructing the jury that a person is guilty of a crime if

they are an accomplice to the crime. But, contrary to Hibszki's argument, the State is

not required to allege accomplice liability in the information. Teal, 117 Wn. App. at 838.

Criminal liability is the same whether one acts as a principal or as an accomplice. State

v. Carter. 154 Wn.2d 71, 78, 109 P.3d 823 (2005). Accomplice liability is not an

element or alternative means of committing a crime but, rather, is an alternative theory

of liability. Teal, 117 Wn. App. at 838. "It is constitutionally permissible to charge a

person as a principal and convict him as an accomplice, as long as the court instructs

the jury on accomplice liability." State v. Bobenhouse. 143 Wn. App. 315, 324, 177

P.3d 209 (2008).4 The court did not abuse its discretion by instructing the jury on

accomplice liability.

       Hibszki also claims that the order of the jury instruction defining accomplice

liability and the instruction on accomplice testimony was confusing. We disagree. The

court specifically instructed the jury that the order of the instructions "has no

significance" and directed the jury to "consider the instructions as a whole." We

presume the jury followed the court's instruction. State v. Stein. 144 Wn.2d 236, 247,

27P.3d 184(2001).



       4 Emphasis in original.

                                              13
No. 71159-8-1/14


      We also conclude the jury inquiry does not show the accomplice liability

instructions were "unduly confusing." During deliberations, the jury submitted an inquiry

to the court, stating, "Can one be convicted of 2nd degree Burglary without entering the

building but acting as an accomplice to the other individual committing 2nd degree

Burglary?" The court directed the jury to "refer to the Court's Instructions." The inquiry

does not indicate the jury was confused about the theory of accomplice liability.

      We affirm.




                                                 T$jQtA\r4lQ><t
WE CONCUR:




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                                            14
  IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
                                     DIVISION ONE

UNION BANK, N.A., as successor-in-                  No. 70497-4-1                             fs>
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F.R. MCABEE, INCORPORATED,                                                                        CT-

A Washington corporation, FAR NORTH
VENTURES, LLC, a Washington limited
liability company, A. SUZANNE WARE,                 UNPUBLISHED OPINION
an unmarried individual, G. PAULWARE
an unmarried individual, JARED WARE                 FILED: April 13, 2015
and NOELLE WARE, husband and wife,
LEVI WARE and STEPHANIE WARE
husband and wife, ADAM WARE and
KATHERINE WARE, husband and wife,

                      Respondents.


       Per Curiam — Following the Washington Supreme Court's decision in

Washington Federal v. Harvey.          Wn.2d       , 340 P.3d 846, 2015 WL 114165

(2015), the parties in this appeal filed a stipulation to the reversal of the trial court's

judgments. The parties also stipulate that the trial court on remand shall determine

the amount of any award for attorney fees and costs incurred in the appellate

proceedings.
No. 70497-4-1/2



      We lift the stay previously imposed, accept the parties' concession, reverse,

and remand for further proceedings.

                                        FOR THE COURT:




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