     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                                          en     j;;;', '..'-
                                                                               C—    pi
                                                 No. 72452-5-1
                     Respondent,
      v.                                         DIVISION ONE                  \£>    '--rib.

CESAR RAMOS-AVILA,                               UNPUBLISHED OPINION
                                                                                o


                     Appellant.                  FILED: January 19, 2016        K"



      Leach, J. — Cesar Ramos-Avila appeals his conviction for one count of

arson in the first degree. He contends that the trial court should have instructed

the jury on arson in the second degree because he set fire to a portion of the

Wintergreen Place apartment building and the fire did not reach the inside of any

apartments. Because the record does not contain sufficient facts for a jury to

convict Ramos-Avila of an inferior degree or lesser included offense and acquit

him of the charged offense, the trial court did not err. We affirm.

                                    Background

       On May 18, 2014, Cesar Ramos-Avila set a fire at the Wintergreen Place

apartments in Des Moines, Washington.           Wintergreen Place is a two-story

complex with access to each apartment provided by unsecured central interior

stairways. The upper units have exterior balconies. Desiree Sanchez lived at

Wintergreen Place with several family members.          On May 18, Sanchez saw

sparks and smoke coming under the front entry door of her apartment.
No. 72452-5-1 / 2




Sanchez's father, Pablo Ramirez, opened the door to find fire and smoke

blocking an escape. He saw flames on the door and the carpet. Residents of

other units in the complex fled to their balconies, and some leaped off.

Firefighters hoisted a ladder to aid in the rescue. Shortly before the fire, two

witnesses, Maricela De La Cruz and Maria De La Cruz, saw Cesar Ramos-Avila

walk past their front window and go upstairs with a gas can.        Once the fire

started, Maricela saw Ramos-Avila running from the fire, carrying what appeared

to be the same gasoline container.

       Ramirez testified that the day before the fire, he and Ramos-Avila got into

a physical altercation in a store parking lot. After the incident with Ramos-Avila,

Ramirez realized that he was missing his wallet.      Ramirez's wallet contained

identification cards showing his home address.

       King County Sheriff's Office Fire Investigator Charles Andrews testified

that the fire warped the unit's metal front door, which allowed flame and smoke to

enter the apartment. Andrews also testified that the whole apartment would have

burned had the fire burned an additional 10 minutes because "the fire was

already lapping under the door and around the door to get into the apartment"

and had nearly reached a large amount of combustible material in the home.

Photographs showed fire and smoke damage from both inside and outside

Ramirez's unit and also smoke damage inside the unit across the stairwell,

where another family lived.
No. 72452-5-1 / 3




       A forensic scientist for the Washington State Patrol Crime Laboratory

testified about traces of gasoline found on fire debris from the doorway, a burned

doormat, carpet under a doormat, and Ramos-Avila's shoes.             Ramos-Avila

testified that he did not start the fire, had no idea where the apartment building

was, did not go to Wintergreen Place that day, and had no gasoline that day.

       Ramos-Avila requested jury instructions for an inferior degree offense,

arson in the second degree, and a lesser included offense, reckless burning in

the first degree.   Ramos-Avila argued that because the fire did not occur in a

living area, the jury could ultimately decide that it was not part of a dwelling,

entitling him to an inferior degree offense jury instruction.

       The State objected and asserted that the record included no evidence that

would permit an inference that the fire occurred in a building that was not a

dwelling. The trial court concluded that the evidence included no set of facts that

permitted a jury to conclude that Ramos-Avila committed arson in the second

degree and did not commit arson in the first degree. The jury found Ramos-Avila

guilty of arson in the first degree. Ramos-Avila appeals.

                                       Analysis

       Ramos-Avila contends that the trial court should have instructed the jury

on the inferior degree offense of arson in the second degree because a jury

could have concluded that he set fire to a building that was not a dwelling. We

disagree.
No. 72452-5-1 / 4




      The trial court made a factual determination when it concluded that the

evidence did not support Ramos-Avila's request for an inferior degree or lesser

included offense instruction. When a trial court bases its decision to include or

omit a jury instruction on a factual determination, we review for abuse of

discretion.1 To determine if the record includes sufficient evidence to support the

giving of an instruction, we review the evidence supporting a proposed jury

instruction in the light most favorable to the party that requested the instruction.2

       A person is guilty of arson in the first degree if he knowingly and

maliciously causes a fire or explosion which damages a dwelling.3 A "dwelling"

includes "any building or structure, though movable or temporary, or a portion

thereof, which is used or ordinarily used by a person for lodging."4

       A person is guilty of arson in the second degree if he knowingly and

maliciously causes a fire or explosion which damages a building.5 A "building"

includes a "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."6

       When the State charges a defendant with an offense consisting of

different degrees, the jury may find the defendant guilty of any inferior degree, or


       1 State v. Condon, 182 Wn.2d 307, 315-16, 343 P.3d 357 (2015).
       2 State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150
(2000).
       3RCW9A.48.020(1)(b).
       4RCW9A.04.110(7).
       5RCW9A.48.030(1).
       6RCW9A.04.110(5).
No. 72452-5-1 / 5




of an attempt to commit the offense, and not guilty of the charged offense.7 In all

other cases, the defendant "may be found guilty of an offense the commission of

which is necessarily included within that with which he or she is charged."8

       A trial court should give a proposed jury instruction on a lesser included or

inferior degree offense if the evidence would "'permit a jury to rationally find a

defendant guilty of the lesser offense and acquit him of the greater.'"9

       The proposing party must satisfy both a legal and factual requirement.10

To satisfy the legal requirement, the proponent must show that the proposed

instruction describes an offense that is an inferior degree of the charged

offense.11   For a lesser included offense, the proponent must show that the

proposed instruction describes an offense where each element of that lesser

offense is included in the charged offense.12 To satisfy the factual requirement,

the proponent must show that, when viewing the evidence in the light most

favorable to the proposing party, the jury could find that the proponent is guilty of

the lesser offense and not guilty of the charged offense.13 The evidence must



       7 RCW 10.61.003, .010.
       8 RCW 10.61.006.
      9 Fernandez-Medina, 141 Wn.2d at 456 (quoting State v. Warden, 133
Wn.2d 559, 563, 947 P.2d 708 (1997)).
      10 State v. McDonald. 123 Wn. App. 85, 88, 96 P.3d 468 (2004); State v.
Tamalini, 134 Wn.2d 725, 728-29, 732, 953 P.2d 450 (1998).
       11 McDonald, 123 Wn. App. at 88-89; Tamalini, 134 Wn.2d at 732; State v.
Foster, 91 Wn.2d 466, 472, 589 P.2d 789 (1979).
       12 McDonald, 123 Wn. App. at 89; Tamalini, 134 Wn.2d at 728-29; State v.
Berlin, 133 Wn.2d 541, 545-46, 947 P.2d 700 (1997); State v. Workman, 90
Wn.2d 443, 447-48, 584 P.2d 382 (1978).
       13 McDonald. 123 Wn. App. at 89; Fernandez-Medina, 141 Wn.2d at 455-
56; Tamalini, 134 Wn.2d at 729, 732; State v. leremia, 78 Wn. App. 746, 755,


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No. 72452-5-1 / 6




"affirmatively establish the defendant's theory of the case—it is not enough that

the jury might disbelieve the evidence pointing to guilt."14

       This case involves only the factual requirement.        Ramos-Avila contends

that he satisfied this requirement. He asserts that the record shows that he set

fire to a portion of Wintergreen Place where people do not ordinarily lodge.

Thus, he did not set fire to a dwelling. But neither Washington case law nor the

applicable statute supports his argument.

       Washington courts have consistently held that where a building is used for

lodging at the time of the offense, any portion of that building is a "dwelling"

under RCW 9A.04.110(7).15

       In State v. Neal,16 this court held that a toolroom in a residential apartment

building was a dwelling. In that case, an apartment building maintenance worker

saw Neal inside the toolroom putting tools into several bags.17 A jury convicted

Neal of residential burglary.18 Though a toolroom in an apartment building is not

ordinarily used for lodging, the court reasoned that because Neal entered a

building used for lodging, sufficient evidence existed for a jury to find that Neal

entered a dwelling and convict him of residential burglary.19


899 P.2d 16 (1995) (evidence must support inference that defendant committed
the lesser offense "instead of" the charged offense).
       14 Fernandez-Medina, 141 Wn.2d at 456.
     15 State v. Neal, 161 Wn. App. 111, 114, 249 P.3d 211 (2011); State v.
Murbach, 68 Wn. App. 509, 513, 843 P.2d 551 (1993).
     16 161 Wn. App. 111, 114, 249P.3d211 (2011)
     17 Neal, 161 Wn. App. at 112.
     18 Neal, 161 Wn. App. at 113.
     19 Neal, 161 Wn. App. at 114.


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No. 72452-5-1 / 7




       Similarly in State v. Murbach,20 Division Three of this court held that the

definition of "dwelling" included an attached garage.      In that case, Murbach

entered a garage attached to the victims' home and scratched a car.21 The court

reasoned that the attached garage was part of the dwelling because it was a

portion of a building used as lodging.22

       In State v. McDonald,23 Division Two of this court held that the evidence in

that case raised a jury question about whether a house was a dwelling within the

meaning of RCW 9A.04.110(7) because the homeowners had not been using it

for lodging around the time of the burglary. The court reasoned that the jury

could have convicted McDonald of second degree burglary and not residential

burglary because, when viewing the evidence in the light most favorable to

McDonald, the jury could have found that the Gig Harbor house was not a

dwelling within the meaning of the statute when McDonald burglarized it.24

        Unlike McDonald, where the homeowners were renovating their home,

here no evidence shows renovation or construction at Wintergreen Place when

Ramos-Avila set fire to it.    In McDonald, the home was uninhabited.         Here

undisputed evidence shows that people lived at Wintergreen Place when Ramos-

Avila set the fire.




       20 68 Wn. App. 509, 513, 843 P.2d 551 (1993).
       21 Murbach, 68 Wn. App. at 510.
       22 Murbach. 68 Wn. App. at 513.
       23 123 Wn. App. 85, 91, 96 P.3d 468 (2004).
       24 McDonald, 123 Wn. App. at 90-91.
No. 72452-5-1 / 8




       Here, even viewing the evidence in a light most favorable to Ramos-Avila,

Wintergreen Place is a building used for lodging, and residents used an interior

portion of that building as a dwelling. Though Ramos-Avila contends that a jury

could have reasonably concluded that "persons do not ordinarily 'lodge' in the

stairwell of the building," Washington case law and RCW 9A.04.110(7) refute his

position.

       Viewing the record in the light most favorable to Ramos-Avila, even

though the fire did not contact the inside part of the apartment unit, the exterior

door to the interior hallway or stairway is still part of a dwelling because it is a

part or portion of a building used for lodging. The trial court did not abuse its

discretion when it refused to instruct the jury on arson in the second degree

because a jury could not have reasonably concluded that he committed only this

lesser offense.


       Ramos-Avila next contends that the trial court erred when it used the


improper test to refuse an inferior degree or lesser included offense jury

instruction. However, even if the trial court did err in its analysis, the error was

harmless and does not warrant reversal because it did not materially affect the

verdict.


       The test for determining if a party is entitled to an instruction on an inferior

degree offense differs from the test for a lesser included offense instruction only

with respect to the legal component of the test.25 A trial court must give a lesser


       25 Fernandez-Medina, 141 Wn.2d at 455.


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No. 72452-5-1 / 9




included offense instruction where (1) each element of the lesser offense is a

necessary element of the greater offense charged and (2) the evidence in the

case supports an inference that the defendant committed only the lesser crime.26

An inferior degree offense instruction is appropriate when

       "(1) the statutes for both the charged offense and the proposed
       inferior degree offense 'proscribe but one offense'; (2) the
       information charges an offense that is divided into degrees, and the
       proposed offense is an inferior degree of the charged offense; and
       (3) there is evidence that the defendant committed only the inferior
       offense."'27]

       Ramos-Avila does not claim constitutional error. A nonconstitutional error


is harmless if it did not, within reasonable probability, materially affect the

verdict.28

       Ramos-Avila does not contend that the instructions were misleading,

could not be readily understood by the jury, or did not permit him to argue his

theory of the case.29 Instead, Ramos-Avila asserts that the trial court relied on a

mistaken analysis to reach its ruling.

       Ramos-Avila asserts that the trial court improperly used the lesser

included offense analysis to reject his request for an inferior degree instruction.

However both instructions require the same factual inquiry: the evidence "must

raise an inference that only the lesser included/inferior degree offense was


      26 State v. Meneses. 169 Wn.2d 586, 595, 238 P.3d 495 (2010).
      27 Fernandez-Medina, 141 Wn.2d at 454 (quoting State v. Peterson, 133
Wn.2d 885, 891, 948 P.2d 381 (1997)).
      28 State v. Zwicker, 105 Wn.2d 228, 243, 713 P.2d 1101 (1986).
      29 State v. Hutchinson, 135 Wn.2d 863, 885, 959 P.2d 1061 (1998);
Petersen v. State, 100 Wn.2d 421, 440, 671 P.2d 230 (1983); State v. Dana, 73
Wn.2d 533, 537, 439 P.2d 403 (1968).


                                         -9-
No. 72452-5-1/10




committed to the exclusion of the charged offense."30        Here, the trial court

resolved the matter on the factual prong, stating, "I don't see that there have

been facts presented where they could conclude that a lesser included crime,

indeed, was committed."

       The record does not contain affirmative evidence supporting Ramos-

Avila's contention that he committed arson in the second degree but did not

commit arson in the first degree. The record includes overwhelming evidence

that the interior hallway or stairway of Wintergreen Place constituted a dwelling

and Ramos-Avila maliciously and knowingly set fire to it. Even if the trial court

did err in its legal analysis, it reached the correct conclusion and properly

instructed the jury. Any analysis error was harmless because it did not materially

affect the jury's verdict.

                                    Conclusion


       The trial court did not abuse its discretion when it rejected Ramos-Avila's

request for a jury instruction for arson in the second degree because a jury could
not have reasonably concluded that he committed only the lesser offense. Any




        30 Fernandez-Medina, 141 Wn.2d at 455.


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No. 72452-5-1 /11




error in the trial court's legal analysis was harmless because it did not materially

affect the jury's verdict. We affirm.




WE CONCUR:




                                                                         J.




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