State v. Klimes

Citation: 73 P.3d 416Docket: 47198-8-I

Court: Court of Appeals of Washington; July 28, 2003; Washington; State Appellate Court

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Vlastimil Klimes, Jr. was convicted of second degree burglary for unlawfully entering or remaining in a Maple Valley junkyard during business hours. His appeal raised a novel question regarding whether Washington's burglary statutes recognize separate means of committing burglary: "enters unlawfully" and "remains unlawfully." The court concluded that they do and reversed Klimes' conviction, remanding for a new trial focused solely on the "enters unlawfully" means. The decision was based on three key points: 

1. Substantial evidence only supported the "enters unlawfully" means, as the facts indicated Klimes entered the junkyard through a public entrance while it was open for business.
2. The prosecutor did not specify the "enters unlawfully" means and incorrectly instructed the jury that it could convict Klimes for unlawfully remaining, even if it accepted his claim of lawful entry.
3. The jury did not indicate which means it relied upon for the conviction, violating legal standards.

The court referenced RCW 9A.52.010(3), which defines unlawful entry or remaining in premises lacking license, invitation, or privilege. It acknowledged that individuals entering an open retail space through a public entrance are generally considered licensed, even if they intend to commit theft. The facts outlined included the context of the junkyard's layout, the officers' response to a report of suspicious activity, and the subsequent encounter with Klimes and his father, who were found dismantling an engine inside the yard.

Officers detained Klimes and his father, handcuffing them and escorting them to a van parked near a junkyard. Upon inspecting the van, Officer Klophenstein found a car hood and auto parts. The junkyard owner identified these items as belonging to him and testified that he had previously prohibited Klimes' father from entering the junkyard. He maintained an inventory system for major parts but did not provide receipts for all transactions. Klimes testified that he and his father had washed their van's engine and entered the junkyard through the front gate, where they browsed for about 45 minutes before police arrived. Klimes claimed to have purchased the car hood earlier that week but had never received receipts for any parts. He was charged with second-degree burglary for entering the junkyard unlawfully with intent to steal. The prosecution argued that Klimes entered unlawfully by climbing over the fence and that any entry with criminal intent revoked any invitation to be on the premises. The prosecutor clarified to the jury that the state needed to prove either unlawful entry or remaining, not both, and that jurors did not need to reach a unanimous decision on which element was satisfied.

Unlawful entry or remaining within a building constitutes the basis for a second-degree burglary conviction under RCW 9A.52.030(1), which necessitates the intent to commit a crime against persons or property. In this case, the jury found Klimes guilty after determining he unlawfully entered or remained in a fenced junkyard, deemed a "building" per statutory definitions. The relevant jury instruction followed WPIC 60.04, which treats "enters or remains unlawfully" as a unified element. Klimes argues that these phrases represent alternative means of committing the offense, while the State contends they are a single means. The analysis supports Klimes' position, noting that Washington case law, including State v. Collins, interprets "enters unlawfully" and "remains unlawfully" as distinct actions. In Collins, the defendant was allowed entry under false pretenses but later committed crimes, which led to a conviction for unlawfully remaining. The Supreme Court upheld the conviction, indicating that the lawful entry can become unlawful if the defendant's intent changes or if the privilege of being on the premises is revoked. This case emphasizes the necessity for a nuanced approach, as the interpretation of lawful versus unlawful presence depends on the circumstances surrounding each case.

In State v. Thomson, the defendant was initially convicted of first degree rape after unlawfully entering the victim's locked bedroom and engaging in sexual intercourse by forcible compulsion. On appeal, the defendant contended he was guilty only of second degree rape, arguing he entered the home with the victim's invitation. The Court of Appeals reversed the conviction, reasoning that while the defendant’s entry into the home was lawful, his entry into the locked bedroom was felonious, which could have warranted a burglary charge. However, he was not charged with burglary. The court determined that under Washington law (RCW 9A.44.040(1)(d)), first degree rape required felonious entry into a "building," and the locked bedroom did not qualify as such since the victim's home was not a multi-unit dwelling. This case clarified that unlawful entry and unlawful remaining are distinct acts and established that lawful entry into an open retail establishment does not constitute unlawful remaining for burglary. For instance, in State v. Miller, the court reversed a burglary conviction when the defendant lawfully entered a car wash but later committed theft, emphasizing that allowing such a conviction would improperly elevate shoplifting to a felony. Conversely, in State v. Kutch, the defendant was convicted of second degree burglary after being banned from a store, as prior notice had revoked his invitation to enter the premises, affirming that he unlawfully re-entered.

"Enters unlawfully" and "remains unlawfully," both with the intent to commit a crime, are recognized as alternate means of committing burglary. The court is not swayed by the State's references to State v. G.S., which interpreted a harassment statute as providing four distinct means without overlap in subsection (i). The G.S. ruling emphasized that if the Legislature had intended for subsection (i) to present two means, it would have explicitly separated them, unlike in other statutes that have clearly defined subsections for alternative means of other crimes. However, the G.S. court acknowledged that statutes without subdivided sections can still provide multiple means of committing an offense. The usage of "or" does not automatically indicate alternative means; instead, legislative intent must be assessed individually for each case, without a definitive rule. 

Jury verdicts must be unanimous regarding the defendant's guilt, which sometimes necessitates unanimity on the means of committing the crime. The requirement for express unanimity arises when sufficient evidence supports each alternate means presented. If evidence is lacking for any means, a general verdict cannot stand unless the prosecutor or the court specified which means the jury should consider. Verdict unanimity can also be satisfied if all means are supported by substantial evidence and are not contradictory. In the current case, the jury did not indicate the specific means used to find Klimes guilty of second-degree burglary, and the State did not clarify which means to consider during deliberations.

The State informed the jury that unanimity was not required regarding whether Klimes committed burglary by unlawfully entering or unlawfully remaining in the junkyard. Jurors could individually believe in either unlawful entry or unlawful remaining, provided they collectively agreed that he unlawfully entered or remained. However, since the junkyard was open to the public at the time, if the jury accepted Klimes' testimony that he and his father entered through the front gate, it could not convict him of second-degree burglary on the basis of unlawful remaining or unlawful entry with intent to commit theft. Washington law stipulates that the intent to commit a crime does not render lawful entry or remaining in a public business unlawful. Thus, Klimes could only be convicted if he entered unlawfully, such as by climbing the back fence, rather than through the front gate. The owner did not permit entry through the back fence, as indicated by the concertina wire, which signaled the public that only the front gate was permissible for entry. The court dismissed Klimes' claim that there was insufficient evidence of unlawful entry, noting that a rational jury could conclude he and his father entered the junkyard similarly to the officers, by climbing over a fence using stacked tires. Klimes’ father had previously been barred from the junkyard, yet both were found inside. Klimes did not assert that he entered through the front gate while his father used another method, and the location of their van suggested it had to have been pulled from the car wash, implicating a more complex scenario than simply parking nearby.

Klimes and his father did not take their wallets into the junkyard, which was unusual if they intended to purchase a carburetor. Instead, parts belonging to the junkyard owner, including a car hood, were discovered in their van. The owner’s testimony about the lack of a receipt for these parts was ambiguous, but he indicated that a significant item like the car hood would have generated an invoice if purchased legitimately. There was sufficient evidence for a reasonable jury to determine that Klimes unlawfully entered the junkyard with the intent to commit a property crime. Therefore, the court reversed the previous ruling and ordered a new trial. The court did not address other claims made by Klimes regarding accomplice liability, prosecutorial misconduct, or ineffective counsel. It referenced Washington law on robbery and extortion, noting differences between alternate means of committing these offenses. The court emphasized its analysis of evidence in favor of the State and acknowledged unresolved questions regarding accomplice liability in lawful entries.