                                                               FILED
                                                           DECEMBER 12, 2019
                                                        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. 36294-9-III
                                                )
                       Respondent,              )
                                                )
          v.                                    )
                                                )         UNPUBLISHED OPINION
CHARLES BAKER                                   )
also known as DANIEL C. WILSON,                 )
                                                )
                       Appellant.               )

          PENNELL, J. — Charles Baker appeals his conviction for residential burglary. We

affirm.

                                      BACKGROUND

          Mr. Baker was arrested after he was discovered squatting in a vacant rental house.

Evidence of several crimes was discovered inside the house: a doorway had been booby-

trapped with a knife (indicating an attempted assault), there was physical damage such as

a broken window and graffiti (suggestive of malicious mischief), several items of

personal property were missing (indicative of theft), and utilities had been used without

permission (also indicative of theft).
No. 36294-9-III
State v. Baker


       The State charged Mr. Baker with residential burglary; he exercised his right to a

jury trial. 1 At the close of trial, the court provided the jury with the following instruction,

based on RCW 9A.52.040 and WPIC 60.05: 2

              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 at 126. Mr. Baker did not object.

       The contested issue at trial was whether Mr. Baker’s illegal presence in the rental

house was accompanied by intent to commit a crime. During summation, the State argued

the jury could infer criminal intent from the booby-trap, physical damage, missing

property, and unauthorized use of utilities. The State also argued the jury could find

criminal intent by applying the court’s permissive inference instruction.

       The jury convicted Mr. Baker of residential burglary. He appeals.

                                         ANALYSIS

       Mr. Baker argues the State presented the jury with evidence of multiple acts of

criminality (assault, malicious mischief, and theft) without a unanimity instruction.


       1
        Mr. Baker also pleaded guilty to a charge of unlawful possession of heroin.
The heroin conviction is not at issue in this appeal.
      2
        11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:
CRIMINAL 60.05, at 15 (4th ed. 2016) (WPIC).

                                                2
No. 36294-9-III
State v. Baker


According to Mr. Baker, this was problematic because it (1) deprived him of his right to a

unanimous verdict, (2) allowed the permissive intent instruction to relieve the State of its

burden of proof, and (3) resulted in the prosecutor misstating the law during summation

regarding how the jury could infer intent to commit a criminal act.

       The premise of Mr. Baker’s argument is flawed because it confuses the concepts

of actus reus and mens rea. The actus reus of burglary is illegal entry or remaining. The

mens rea is the intent to commit a crime. By producing evidence at trial of multiple

underlying crimes, the State was endeavoring to prove the mens rea of Mr. Baker’s

burglary charge, not the actus reus. To this end, the State did not need to prove the

commission (or intent to commit) a specific crime. State v. Bergeron, 105 Wn.2d 1, 16,

711 P.2d 1000 (1985) (“[T]he specific crime or crimes intended to be committed inside

burglarized premises is not an element of burglary.”). Nor was jury unanimity as to an

underlying crime required. State v. Johnson, 100 Wn.2d 607, 626, 674 P.2d 145 (1983)

(“[J]ury unanimity on the underlying intent is . . . unnecessary.”), overruled on other

grounds by Bergeron, 105 Wn.2d at 4. Mr. Baker’s arguments regarding multiple acts and

jury unanimity are therefore inapposite and do not undermine the validity of his

conviction.




                                              3
No. 36294-9-III
State v. Baker


       Because we disagree with Mr. Baker's legal arguments regarding proof of intent

and jury unanimity, his claims regarding instructional error3 and misstatements during

summation necessarily fail.

                                    CONCLUSION

      The judgment of conviction is affirmed.

      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.




                                          Pennell, J.
WE CONCUR:




      3 Mr. Baker's claim of instructional error has also not been preserved for review on
appeal. RAP 2.5(a)

                                             4
