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

STATE OF WASHINGTON,                             No. 71434-1-1
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                      Respondent,
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ANDREW JASON BOYLAN;                             UNPUBLISHED OPINION                                ;-> -o r i

NICHOLAS SPENCER CHRISTIN,
                                                 FILED: July 21, 2014                     v£>

                      Appellants.


       Verellen, A.C.J. — Nicholas Christin and Andrew Boylan appeal their

convictions for residential burglary, arguing there was insufficient evidence that the

home they burglarized was a "dwelling" ordinarily used for lodging. Although the

house had been vacant for an extended period of time, there was evidence sufficient

to present a fact question for the jury of whether the building was ordinarily used by a

person for lodging.

       Christin and Boylan also argue that the defense of abandonment should apply

to the crime of residential burglary. But because this court recently held that the

statutory abandonment defense applies only to first and second degree trespass, not

to residential burglary, we affirm.

                                         FACTS


       Ruth Longoria owned a 1,800 square foot, three bedroom house in rural

Thurston County. In 2007, after living in the house for 15 years, she moved out of
No. 71434-1-1/2



state. She took several appliances out of the house and put it up for sale. Although

the house remained vacant, Longoria had friends check on the property from time to

time. Her realtor informed her that as recently as January 2012, he had taken

potential buyers to the house and that the house was in fine condition.

       By March 2012, the house had been vandalized extensively and was in

disrepair. On March 3, 2012, Christin and Boylan entered the house to remove items

to sell as scrap. Neighbors saw them and called police. Officers arrived as Christin

and Boylan were leaving in their truck with a sink, wiring, and pipes. Officers arrested

both men. The State subsequently charged Christin and Boylan with residential

burglary.1

       At trial, the court allowed Christin and Boylan to argue that the building was not

a dwelling and that the State had failed to meet its burden of proof as to that element

of residential burglary. The court also granted the State's request to amend the

information to include an alternative charge of second degree burglary, which omitted

the element that the building be a dwelling.2

       Christin and Boylan did not object to the amended information or to the

proposal to give the jury the option to convict on the second degree burglary charge.




       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." RCW 9A.52.025 (1) (emphasis added).
       2 "A person is guilty 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) (emphasis added).
No. 71434-1-1/3


The trial court instructed the jury as to both offenses, along with the lesser included of

criminal trespass in the first degree.3 There were no objections to the jury instructions.

       Both men were convicted of residential burglary. Christin and Boylan appeal.

                                          ANALYSIS


       Christin and Boylan do not challenge the sufficiency of the evidence that they

entered the building and removed the property. They argue that the evidence was

insufficient to establish that the building was a dwelling and that the State "failed to

disprove [the defense of] abandonment."4 Neither argument is persuasive.

       A challenge to the sufficiency of the evidence admits the truth of the State's

evidence, and all reasonable inferences from the evidence must be drawn in favor of

the State and interpreted most strongly against the defendant.5 An appellate court

must determine whether any rational trier of fact could have found the elements of the

offense beyond a reasonable doubt.6 The elements may be established by direct or

circumstantial evidence.7 An appellate court will defer to the trier of fact on issues of

conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence.8
       A conviction for residential burglary requires proof that the offender unlawfully

entered or remained in a dwelling with intent to commit a crime against persons or




       3 "A person is guilty of criminal trespass in the first degree if he or she knowingly
enters or remains unlawfully in a building." RCW 9A.52.070(1) (emphasis added).
       4 Appellant Christin's Br. at 6.
       5 State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
       6 State v. Ware, 111 Wn. App. 738, 741, 46 P.3d 280 (2002).
       7 State v. Thompson. 88 Wn.2d 13, 16, 558 P.2d 202 (1977).
       8 State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
No. 71434-1-1/4



property therein.9 A "dwelling" is defined as "any building or structure, though movable

or temporary, or a portion thereof, which is used or ordinarily used by a person for

lodging."10 Whether a particular building is a dwelling turns on "all relevant factors"

and is generally decided by the jury.11

       Here, there was ample evidence supporting the conclusion that the building was

a dwelling. The jury heard the owner's testimony that she used the building as a

house and that she was trying to sell it for residential use. As recently as January

2012, two months before the burglary, the realtor showed the house to prospective

buyers.

       There was conflicting testimony about the extent of the house's disrepair at the

time of the burglary. Witnesses offered accounts about conditions inside and outside

the house. Thurston County Sheriff's Deputy Michael Brooks testified that he had

been out to the house prior to the March burglary and that he found the house in a

similar condition.

       The presence of appliances and household fixtures in the truck supports the

inference that Christin and Boylan removed them by tearing them out from the walls.

And viewed in the light most favorable to the State, the presence of debris inside the

residence could be determined to be a result of the burglary itself. The record does




       9RCW9A.52.025(1).
       10RCW9A.04.110.
       11 State v. McDonald. 123 Wn. App. 85, 90-91, 96 P.3d 468 (2004); see also
State v. Murbach, 68 Wn. App. 509, 513, 843 P.2d 551 (1993) (garage attached to a
home was part of a dwelling); State v. Neal, 161 Wn. App. 111, 114, 249 P.3d 211
(2011) (tool room in apartment building was a dwelling).
No. 71434-1-1/5


not clearly reflect whether a person passing by could gauge the extent of the interior

damage. But any conflicts were for the jury to resolve.

      The jury heard the arguments from both the prosecutor and defense counsel

about whether the house was a dwelling. Viewing the evidence in the light most

favorable to the State, there was sufficient evidence that it was an individual's home

and was "ordinarily used by a person for lodging," even if it had not been so used for

an extended period of time.

       Christin contends that "[n]o published decisions in Washington have clarified

when an unoccupied house ceases to be a dwelling," and argues that "other

jurisdictions have addressed the issue."12 But he does not analyze the cases he cites,

refers to no specific portion of them, and makes no comparison between the language

of the statutes from other jurisdictions and Washington's statute. We need not

address such passing treatment of an issue.13 Even if the analysis was more

comprehensively briefed, the decisions of other state courts interpreting their own

statutes are of questionable utility in determining whether the building in this case was

a "dwelling," a term expressly defined in Washington law.14



       12 Appellant Christin's Br. at 5 (citing State v. Evans. 376 S.C. 421, 656 S.E.2d
782 (2008); Sheffield v. State. 881 So.2d 249 (2003); Washington v. State. 753 So.2d
475 (1999); People v. Walker. 212 III. App. 3d 410, 570 N.E.2d 1268 (1991); People v.
Smith. 209 III. App. 3d 1091, 568 N.E.2d 417 (1991); Rash v. Commonwealth, 9 Va.
App. 22, 383 S.E.2d 749 (1989); State v. Kowski. 423 N.W.2d 706 (1988)).
      13 State v. Thomas. 150 Wn.2d 821, 868-69, 83 P.3d 970 (2004), State v.
Johnson. 119Wn.2d167, 171, 829 P.2d 1082 (1992).
       14 Division Two of this court observed that "[according to most other
jurisdictions, the question whether a building is a residence turns on all relevant factors
and is generally a matter for the jury to decide." McDonald 123 Wn. App. at 91 &n.19
(footnotes omitted) (citing out-of-state cases).
No. 71434-1-1/6


        Christin and Boylan also assert that the defense of abandonment, applicable to

a prosecution for criminal trespass of an abandoned building, also applies to

residential burglary. We recently rejected the identical argument in State v. Olson.15

The abandonment defense does not apply to residential burglary, and there was no

trial court error.


        Affirmed.




WE CONCUR:




        15 State v. Olson. No. 69537-1-1, slip op. at 15 (Wash. Ct. App. July 7, 2014).
