                                                             FILED
                                                          JUNE 25, 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. 35990-5-III
                                             )
                    Respondent,              )
                                             )
             v.                              )         UNPUBLISHED OPINION
                                             )
CORY EVANS,                                  )
                                             )
                    Appellant.               )

      LAWRENCE-BERREY, C.J. — Cory Evans stole four security cameras and damaged

a pole within a gated community. A jury found him guilty of second degree malicious

mischief and second degree burglary.

      He appeals his conviction for second degree burglary. He argues the State

presented insufficient evidence that the gated community is completely enclosed by

fencing or a combination of fencing and structures. We agree and, therefore, reverse

Evans’s conviction for second degree burglary.

                                         FACTS

      Todd Hagen, President of Quail Ridge Homeowner’s Association (Quail Ridge),

noticed that four of the five security cameras on a pole inside the community’s gated
No. 35990-5-III
State v. Evans


entrance were missing. The pole was also damaged. The cost to repair the pole and to

replace the four cameras totaled around $4,700.

       Hagen obtained the recorded video. The video showed an individual climbing the

entry wall, reaching out, and pulling the cameras from the pole. Still pictures from the

video were captured, including still shots of the individual’s face. Sergeant Kurt Vigesaa

looked at the still photos and recognized the suspect as Cory Evans.

       The State charged Evans with second degree burglary and second degree malicious

mischief. The State called Hagen as its primary witness at trial. Hagen testified that

Quail Ridge is a gated community with 38 residences inside the property. The State

asked Hagen to describe how the community is gated:

              Q.     And tell us about the gated community. How is it gated?
              A.     So right off of 54th, there’s an—a keypad to enter—to enter
       the community, and residents would enter either the keypad, or if they have
       a transponder in their car, they would click a button and open up the gate to
       come in. And then the gate closes after about 15 seconds or once you enter
       the community.

Report of Proceedings at 99. Hagen thereafter added that vendors, such as those working

on a house, had access only if a resident shared a daytime code with the vendor. The

State admitted photographs of the front gate—three of which show a brick wall attached

to and extending from the gate.




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No. 35990-5-III
State v. Evans


       The jury returned guilty verdicts on both counts, and the trial court imposed a

standard range sentence.

       Evans timely appealed.

                                        ANALYSIS

       SUFFICIENCY OF THE EVIDENCE

       Evans contends there was insufficient evidence to find him guilty of burglary in

the second degree because the State did not show Quail Ridge was completely enclosed

by a fence or structure. We agree.

       When a defendant challenges the sufficiency of the evidence, he or she admits the

truth of all of the State’s evidence. State v. Cardenas-Flores, 189 Wn.2d 243, 265, 401

P.3d 19 (2017). “Evidence is sufficient to support a guilty verdict if any rational trier of

fact, viewing the evidence in the light most favorable to the State, could find the elements

of the charged crime beyond a reasonable doubt.” Id. “[A]ll reasonable inferences from

the evidence must be drawn in favor of the State and interpreted most strongly against”

Evans. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

       To find Evans guilty of second degree burglary, the jury had to find beyond a

reasonable doubt that Evans entered or remained unlawfully in a building other than a

vehicle or dwelling with an intent to commit a crime against a person or property therein.


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No. 35990-5-III
State v. Evans


RCW 9A.52.030(1). “Building,” in addition to its ordinary meaning, can also mean a

“fenced area.” RCW 9A.04.110(5). The area must be completely enclosed by fencing or

enclosed by a combination of fencing and other structures. State v. Engel, 166 Wn.2d

572, 580, 210 P.3d 1007 (2009); State v. Wentz, 149 Wn.2d 342, 68 P.3d 282 (2003).

       In Engel, the defendant was convicted of second degree burglary for theft of

aluminum auto wheels from the business premises of Western Asphalt. Engel, 166

Wn.2d at 574. Western Asphalt’s premises covered over seven acres, which included

several buildings and a yard. Id. One-third of the property was fenced. Id. The rest of

the property was not fenced; it was bordered with stock piles, “‘banks, high banks, [and]

sloping banks.’” Id. at 575 (alteration in original). The theft occurred at night when the

business was closed and the front gate was locked. Id. at 574. A jury found Engel guilty

of second degree burglary, and the Court of Appeals affirmed. Id. at 575. The Supreme

Court reversed. Id. at 581.

       The court noted that burglary in the second degree required one to enter or remain

unlawfully in a building and, in addition to its ordinary meaning, a building included a

“fenced area.” Id. at 576 (citing RCW 9A.52.030; RCW 9A.04.110(5)).

       The State argued that Western Asphalt’s boundary was “‘surrounded by natural

barriers’” and a fence and, these aspects combined, satisfied the “‘fenced area’”


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No. 35990-5-III
State v. Evans


requirement. Id. at 578. Engel argued that the ordinary meaning of a “‘fenced area’” is

an area completely enclosed by a fence, and Western Asphalt’s yard did not meet this

definition because of the hills and slopes surrounding a portion of the boundary of the

yard. Id.

       Under the State’s argument, criminals could unknowingly cross a boundary that

was unmarked and unfenced and, thus, be liable for burglary if they merely remained on

the property without approaching any buildings or structures. Id. at 580. Thus, to avoid

absurd results, the court reasoned that “‘fenced area’ is limited to the curtilage of a

building or structure that itself qualifies as an object of burglary . . . . The curtilage is an

area that is completely enclosed either by fencing alone or . . . a combination of fencing

and other structures.” Id. (emphasis added).

       The State relies on Wentz. There, the court affirmed a conviction for first degree

burglary where the backyard was surrounded by a six-foot high wooden fence with

padlocked gates. 149 Wn.2d at 352. The apprehending officer had to climb over the

fence to gain entry into the backyard to arrest Wentz, who was hiding. Id. The court

determined that a rational fact finder could have found beyond a reasonable doubt that

Wentz’s backyard was “surrounded” by a fence. Id.




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No. 35990-5-III
State v. Evans


       We distinguish Wentz. There, the evidence supported an inference that the

backyard was fully enclosed by a fence. Here, the evidence does not support an inference

that the community of 38 residences was fully enclosed. Hagen testified that Quail Ridge

is a gated community and residents and vendors enter the community through a gate using

an access code. In context, Hagen’s testimony is limited to how vehicles access the

community. He did not testify that the community was fully enclosed by a fence and/or

other structure. The State admitted photographs of the front gate—three of which show a

brick wall attached to and extending from the gate. There was no evidence that the brick

wall extended around the entire community. Moreover, the phrase “gated community” is

sufficiently ambiguous that it does not necessarily mean fully enclosed. See AMERICAN

HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, 5th ed.,

https://www.thefreedictionary.com/gated+community (last visited June 21, 2019) (“A

subdivision or neighborhood, often surrounded by a barrier, to which entry is restricted to

residents and their guests.”).

       Because a rational jury could not have found beyond a reasonable doubt that Quail

Ridge is fully enclosed by a fence and/or other structure, we reverse Evans’s conviction

for second degree burglary. We direct the trial court to resentence Evans on his singular

conviction for second degree malicious mischief.


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No. 35990-5-III
State v. Evans


      Reversed and remanded.

      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.

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                                         Lawrence-Berrey, C.J.        1 . C.. ~.
WE CONCUR:




                                         Pennell, J.




                                            7
