 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                                                        o

                                                 No. 70947-0-1
                    Respondent,
                                                 DIVISION ONE                        Sj   O -7; _
             v.
                                                 UNPUBLISHED OPINION
JAMES E. HAGER,

                    Appellant.                   FILED: March 2, 2015                en




      Trickey, J. — James Hager appeals his conviction for second degree burglary.
He contends that the trial court abused its discretion in admitting evidence of a similar

incident under ER 404(b), and that the evidence was insufficient to show he entered or
remained in a building with the intent to commit a crime. Finding no error, we affirm.
                                          FACTS

       In 2002, Marcus Swenson purchased a piece of rural property in Skykomish,
Washington. The property, located "way out in the woods," is reachable only by a forest
service road and two sets of locked gates.1 Only Swenson, the two adjacent property
owners, and the power company possessed keys to the gates. Present on the property
at the time Swenson purchased it was a "connex box," a large metal shipping container.2
Finding it to be "a good storage container," Swenson cleaned out the container, which
contained "[a] lot of junk . . . random bits of automotive hardware," and put his own
belongings inside, including a cast iron woodstove, a double-insulated steel stovepipe,
and a disassembled cedar hot tub.3 He kept the container locked with a padlock.
Swenson also constructed a yurt and two small outbuildings on the property.



1Report of Proceedings (RP) (Aug. 8, 2013) at 28, 112.
2 RP (Aug. 8, 2013) at 35-36, 141-42.
3 RP (Aug. 8, 2013) at 37-47, 63.
No. 70947-0-1 / 2



       Swenson lived in Seattle and went out to the property every two to six weeks. On

May 11, 2012, Swenson and his family arrived and noticed that the electricity powering
the yurt was not working, there were deep ruts leading to the container, the padlock was
missing, and thewoodstove, stovepipe, and pieces of the hot tub were gone.4 Swenson's
security camera footage from May 4, 2012 showed a large truck and trailer entering the
property and leaving with his items.
       On May 16, 2012, a King County Sheriff's deputy saw the same truck and pulled it
over. Hager, who at the time was a law enforcement officer for the city of Gold Bar, was
driving. Hager admitted he had taken the missing items. He claimed he had done so on
request from a man named Donald Anderson, who Hager claimed owned the property.
The State ultimately charged Hager with one count of second degree burglary.
       At trial, the State sought to introduce evidence of three other acts pursuant to ER
404(b). The first was Hager's admission to detectives that he suffered from a substance
abuse problem and participated in a treatment program around the time of the incident at
the Swenson property. The second involved a raid on a "chop-shop" operation on John
Tharp's property that Hager participated in on May 23, 2012.5 Hager returned to Tharp's
property after dark that evening and removed a stolen utility trailer. Instead of returning
the trailer to the victim, Hager towed it to a defunct lumber mill owned by his friend Richard
Wagner. The third involved an incident on May 19, 2012 in which Hager, Wagner, and a
third man went onto the property of John Fernald without permission. The trial court ruled
that the State could not introduce evidence of drug use or the Tharp property incident.
 However, the trial court allowed testimony regarding the Fernald property incident as
 follows:



 4RP(Aug. 8, 2013) at 38-45.
 5Clerk's Papers (CP) at 108-09; RP (Aug. 13, 2013) at 170.
No. 70947-0-1 / 3




        In terms of the Fernald incident, this involves a trespass with permission
        sought later. There is probative value as to these allegations in the instant
        case in terms of absence of mistake. In looking at the probative value versus
        the prejudicial effect, the Court doesn't believe the State is allowed more
        leeway, just because the defendant is a police officer or that the case law
        allows admission for context, but I do believe there is a -there is proof here
        for absence of mistake in terms of the trespass and the permission being
        sought later. There is obvious prejudicial effect, but I do find that the
        probative value outweighs the prejudicial effect. I will allow the Fernald
        incident to be admitted and the Court will attempt to deal with the prejudicial
        effect by limiting the State somewhat in the amount that can be admitted as
        to this incident. I will allow the State to admit the evidence as to the
        defendant's actions only and I would exclude the actions of the associates
        or companion in the barn in terms of moving Ms. Kohler's property and I
        believe the testimony is taking her glasses. So I will exclude what the
        associates are alleged to have done and limit to the actions the State can
        link up to the defendant itself.[6]
        Four witnesses testified regarding the Fernald property incident: Fernald, Gerald
Reule, Teresa Kohler, and Detective Brad Williams. Fernald testified that he had moved
to Nevada and left his property unoccupied. Fernald gave Reule, Kohler, and another
man, Bill Cross, permission to access the property. Fernald had previously met Hager
when some items were stolen from his property in August 2011 and Hager came out to
take a report. Fernald did not give Hager permission to go on his property at any future
time.

        Reule testified that in May 2012, the gate leading to the Fernald property was
locked with a key lock and only he, Kohler, and Cross had keys. Reule also did not give
Hager permission to go on the property in a civilian capacity.
        Kohler testified that she was on the property on May 19, 2012, when she saw a
white truck pulling a flatbed trailer. She was frightened because she did not recognize
the truck, and hid in some blackberry bushes. Kohler eventually made her way back to
 her car. Her car's hood was raised, her sparkplugs and registration were missing, and

 6RP(Aug. 7, 2013) at 67-68.
No. 70947-0-1/4



on the windshield was a note that said, "Come see me for registration and etcetera. Jim

Hager. I'm up top."7 Kohler walked to the main road and called 911. When Kohler
returned to her car, Hager was standing next to it. Hager told Kohler that he was friends
with Fernald and had Fernald's permission to be there. The next day, May 20, Hager
called Fernald and asked permission to go onto Fernald's property to hunt a bear.
      Detective Williams testified that he investigated Hager's entry onto the Fernald

property. Hager told Detective Williams that Fernald gave him permission to be on the
property and Reule had given him the combination to a padlock on the gate. Following
the incident, Hager called Fernald and asked him "to call his department and clear it up."8
       Hager testified that, as part of his role as a police officer, hewas helping an elderly
man named Bill Pearson evict Donald Anderson, an unwanted tenant. Hager stated that
Anderson told him that he owned the Swenson property and needed to retrieve some

belongings from it before he could move. He claimed that Anderson drew him a map to
reach the property. Anderson did not specify what property he allegedly wanted and
Hager did not ask. Nor did Anderson give Hager the keys to the gates or the container.
Hager testified that he drove to the Swenson property and used a power company key he
had gotten from "a buddy of mine" to open the gates.9 He cut the lock on the container
with bolt cutters and gathered some items heassumed Anderson wanted. He stated that
he attempted to contact Anderson to drop off the items, could not find Anderson, and
decided to leavethe items undera tarp at his own house. Regarding the Fernald property,
he claimed that Reule invited him up to the Fernald property to camp and hunt a bear.




7RP(Aug. 12, 2013) at 32.
8RP(Aug. 12, 2013) at 163.
9RP(Aug. 13, 2013) at 147.
No. 70947-0-1 / 5



      Anderson denied telling Hager to retrieve items for him or drawing Hager a map.

He testified that sometime after the incident on the Swenson property Hager came out to

his house late at night and "asked if Iwould say if he—I gave him permission."10 Tharp,
on whose property Anderson was living at the time, witnessed Hager, in civilian clothes,
talking to Anderson between 2:00 and 3:00 a.m. on May 24, 2012.
       The State proposed, and the trial court gave, the following instruction as Jury
Instruction 7: "Building, in addition to its ordinary meaning, includes any dwelling orfenced
area."11 Ajury convicted Hager as charged. Hager appeals.
                                        ANALYSIS

                                    ER 404(b) Evidence

       Under ER 404(b), "[ejvidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in conformity therewith." But such
evidence may be admissible for other purposes, such as to show "absence of mistake or
accident." ER 404(b). In order to admit evidence under ER 404(b), the trial court must
"(1) find by a preponderance of the evidence that the misconduct occurred, (2) identify
the purpose for which the evidence is sought to be introduced, (3) determine whether the
evidence is relevant to prove an element of the crime charged, and (4) weigh the probative
value against the prejudicial effect." State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159
(2002). We review a trial court's ruling on the admissibility of ER 404(b) evidence for
abuse of discretion. State v. Maaers. 164Wn.2d 174, 181, 189P.3d 126(2008). Abuse
of discretion is shown only when a trial court's decision is manifestly unreasonable or
 based upon untenable grounds or reasons. Maqers, 164 Wn.2d at 181.



 10RP(Aug. 8, 2013) at 160.
 11 CPat54, 119.
No. 70947-0-1 / 6



       Hager contends the trial court erred in admitting evidence of the Fernald property
incident because it was not relevant to show absence of mistake or accident. He argues

that because he did not actually remove anything from the Fernald property, it was not
analogous to the incident on the Swenson property. But Hager's defense to the burglary
was that he believed he had permission to be there. Likewise, Hager's explanation
regarding the Fernald property incident was that he believed he had permission to be
there. There were other marked similarities between the two incidents: (1) Hager entered
properties that he knew to be remote and unoccupied; (2) the owners denied giving Hager
permission to go onto the properties at will or giving him keys he would need to open
locked gates; (3) Hager attempted to seek permission after being confronted by law
enforcement; and (4) Hager used his status as a law enforcement officer to justify his
actions. The record reveals that the trial court carefully considered Hager's arguments
and thoroughly described its reasoning in admitting the evidence. The trial court also
limited the testimony to Hager's actions only and not those of his companions. Because
the evidence of the Fernald incident tended to negate Hager's claim that he went onto the
Swenson property and removed items by mistake, the trial court did not abuse its
discretion in admitting it for that purpose.

       Hager argues that even if evidence of the incident was admissible, the trial court
should have prevented the State from eliciting certain details he claims are more
 prejudicial than probative. Specifically, Hager cites (1) Detective Williams' testimony that
 the Fernald property contained pieces of metal and equipment that could be taken to a
 scrapyard and sold for money, and that Detective Williams later ran into Hager at Loth
 Lumber, a "multipurpose"12 site that housed large pieces of metal; and (2) Kohler's

 12RP(Aug. 12, 2013) at 153.
No. 70947-0-1 / 7



testimony that she was frightened and hid from Hager and that Hager removed her
sparkplugs and registration from her car. But the evidence regarding the value of scrap
metal was probative to the issue of Hager's intent in going onto the properties.
Additionally, because another detective had already testified as to the market for scrap
metal, the evidence was, at most, cumulative. Kohler testified that she was frightened
because she did not recognize Hager's truck, demonstrating that Hager did not have
permission to be on the Fernald property. And Kohler's testimony that Hager left a note
on her car established Hager's presence and identity. The probative value of this
evidence outweighed any prejudice to Hager.
                          Sufficiency of the Evidence: "Building"
        Aperson commits burglary in the second degree when, with intent to commit a
crime against a person or property therein, he or she enters or remains unlawfully in a
"building." RCW 9A.52.030(1). Hager contends that the State's evidence was insufficient
to show that he entered a "building" as defined in Jury Instruction 7.
        Jury Instruction 7 instructed the jury that "[bjuilding, in addition to its ordinary
meaning, includes any dwelling or fenced area." Hager argues that because the State
offered no evidence he entered a "dwelling" or "fenced area," the State was required to
prove that what Hager entered fell within the "ordinary meaning" of "building." Hager
argues that the shipping container is not a building within the ordinary meaning of the
term. Hager points to RCW 9A.04.100(5), which provides the following definition for
 "building":

        "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.
No. 70947-0-1 / 8



(Emphasis added). Because RCW 9A.04.100(5) specifies that a "cargo container" is an
example of a type of building "in addition to its ordinary meaning," Hager argues, a "cargo
container" cannot also be a building within the ordinary meaning of the term.

       The meaning of a statutory definition is an issue of law we review de novo. State
v. Johnson, 132 Wn. App. 400, 406, 132 P.3d 737 (2006). Whether the evidence at trial
meets that definition is a factual question we review for sufficiency of the evidence.
Johnson, 132 Wn. App. at 406. Sufficient evidence supports a jury's verdict if a rational
person viewing the evidence in the light most favorable to the State could find each
element proven beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829
P.2d 1068 (1992). We draw all reasonable inferences from the evidence in the State's
favor and interpret them most strongly against the defendant. Salinas, 119 Wn.2d at201.
       "Cargo container" is not defined by statute. When a statutory term is undefined,
we may look to a dictionary definition or related provisions to determine its meaning.
Woodbury v. Citv of Seattle, 172 Wn. App. 747, 750, 292 P.3d 134, review denied, 177
Wn.2d 1018, 304 P.3d 114 (2013). We also consider the context of the statute in which
the provision is found. Woodbury, 172 Wn. App. at 750.
       The dictionary defines "cargo" as "the lading or freight of a ship, airplane, or
vehicle: the goods, merchandise, or whatever is conveyed," and "container" as "a
receptacle (as a box or jar) or aformed or flexible covering for the packing or shipment of
articles, goods, or commodities ... a portable usu. metal compartment in which freight is
placed for convenience of movement esp. on railroad container cars." Webster's Third
 New International Dictionary 339, 491 (1993). WAC 296-56-60005 also provides
 some guidance, defining "[ijntermodal container" as "a reusable cargo container of rigid
 construction and rectangular configuration intended to contain one or more articles of

                                              8
No. 70947-0-1 / 9



cargo or bulk commodities for transportation by water and one or more other transport
modes without intermediate cargo handling."

      "Building," on the other hand, is defined as "[a] constructed edifice designed to
stand more or less permanently, covering a space of land, usu. covered by a roof and
more or less completely enclosed by walls, and serving as a dwelling, storehouse, factory,
shelter for animals, or other useful structure—distinguished from structures not designed
for occupancy (as fences or monuments) and from structures not intended for use in one
place (as boats or trailers) even though subject to occupancy." Webster's Third New
International Dictionary 292 (1993).

       The shipping container on the Swenson property was not being used to transport
goods. It had been on the property for more than ten years, lodged in a heavily wooded
area, and had consistently been used as a storage shed for the owner's personal items.
Both the dictionary definitions and WAC 296-56-60005 support our conclusion that the
structure Hager entered was a "building," within the ordinary meaning of the term, and not
a "cargo container."
       This conclusion is consistent with the only published case involving burglary of a
cargo container. In State v. Tyson, 33 Wn. App. 859, 860-61, 658 P.2d 55 (1983), the
defendant was convicted of second degree burglary involving a "loaded cargo trailer" at
the Delta Truck Lines freight terminal that "had just arrived from California and was
awaiting unloading. It was still attached to the truck tractor which had hauled it [to
Washington]." The court held that such a structure was a "cargo container."
        In the present case, the uncontroverted testimony at trial established that
       the semitrailer, which had been broken into and entered, was a separate
       detachable container orstructure from the truck tractor unit which was used
       to draw it, and was strictly a cargo trailer used for general freight. It was
       also, at the time of the unlawful entry, parked in the freight yard over a
        weekend awaiting the unloading of its cargo. Such evidence together with
No. 70947-0-1/10


      the reasonable inferences drawn therefrom was sufficient to convince any
      rational trier of fact beyond doubt that the trailer was either a cargo container
      or other structure used for the deposit of goods and thus was encompassed
      within the unique statutory definition of "building" for purposes of burglary in
      the second degree.

Tyson, 33 Wn. App. at 863 (footnotes and citations omitted).

      Because Hager admitted he entered the shipping container and removed
Swenson's items, the evidence was sufficient to allow the jury to conclude beyond a

reasonable doubt that Hager entered a building.

                              Sufficiency of the Evidence: Intent

       Finally, Hager argues that the State failed to present sufficient evidence that he
entered the Swenson property with the intent to commit a crime, one of the elements of
second degree burglary.13 We disagree.
       "In any prosecution for burglary, any 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, unless such entering or remaining shall be explained by evidence
satisfactory to the trier of fact to have been made without such criminal intent." RCW
9A.52.040. The intent to commit a crime may also be inferred if the defendant's conduct
and surrounding facts and circumstances plainly indicate such an intent as a matter of
logical probability. State v. Woods, 63 Wn. App. 588, 591, 821 P.2d 1235 (1991). "In
determining the sufficiency of the evidence, circumstantial evidence is not to be
considered any less reliable than direct evidence." State v. Delmarter, 94 Wn.2d 634,
638,618 P.2d 99 (1980). We defer to the jury on issues of conflicting testimony, credibility



13 Hager contends that the State conceded this argument because it failed to specifically address
it in its response brief. But we need not decide whether the State's omission constituted a
concession because even if it did, we would decline to accept it. See In re Pers. Restraint of
Goodwin, 146 Wn.2d 861, 875, 50 P.3d 618 (2002) (appellate court not bound by erroneous
concession of legal error).
                                               10
No. 70947-0-1 /11



of witnesses, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821,

874-75, 83 P.3d 970 (2004).

       Here, the State presented sufficient evidence from which the jury could infer that

Hager intended to commit a crime.         Hager entered the Swenson property without

permission, using a power company key to open the gates, and bolt cutters to open the

lock on the shipping container. He then removed several items and took them to his own
home where he placed them under a tarp. Though Hager argues that his presence on

the Swenson property was merely the result of a misunderstanding and he did not intend
to deprive anyone oftheir property, this explanation was clearly not persuasive to the jury.
Sufficient evidence supports the conviction for second degree burglary.

       Affirmed.




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WE CONCUR:




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