State Of Washington, V Dustin Allen Rose, 47989-3

At ~11:30 p.m., Nicole Miller heard noises, observed her backyard gate open, and saw a man (Dustin Rose) near her bedroom window; police found Rose in her yard and arrested him.
Police found Miller’s bedroom window screen removed with a rectangular cut, a multi-tool with its knife blade extended beneath the window, an exterior handprint on the middle pane, and fingerprints on a sliding pane.
Rose admitted being in the backyard, intoxicated, and testified he intended only to leave a note about litter; he said he lacked pen/paper and that he accidentally cut and removed the screen while attempting to leave a note.
The State charged attempted first degree residential burglary (RCW 9A.28.020; 9A.52.025). The trial court instructed the jury without a lesser‑included instruction for attempted first degree criminal trespass or a voluntary intoxication instruction. The jury found Rose guilty.
On appeal, the court addressed (1) sufficiency of the evidence to support attempted residential burglary and (2) ineffective assistance of counsel for failing to request a lesser‑included instruction on attempted first degree criminal trespass.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of the evidence to prove attempted first‑degree residential burglary	State: circumstantial evidence (entry to fenced yard, screen cut/removed, handprint, multi‑tool) permits inference of intent to commit a crime inside — a substantial step toward burglary	Rose: he did not enter the residence and intended only to leave a note; no proof of intent to commit a crime inside	Held: Evidence was sufficient; a rational jury could infer intent and a substantial step toward burglary (conviction supported)
Ineffective assistance for failing to request lesser‑included instruction (attempted first‑degree criminal trespass)	State: not directly argued on appeal; otherwise maintains instructions were proper	Rose: counsel was deficient for not requesting the lesser included misdemeanor instruction; absence prejudiced him by denying the jury a non‑felony alternative	Held: Rose entitled to lesser‑included instruction; counsel’s failure was deficient and prejudicial; conviction reversed and remanded
Jury inference instruction (instruction permitting inference of intent from unlawful entry)	State: inference instruction permitted intent to be inferred	Rose: instruction was improper when only attempt (no proven entry) was charged	Held: Trial court gave an improper inference instruction for intent when only attempted burglary was charged (noted in opinion; supports prejudice analysis)

State v. Homan, 181 Wn.2d 102 (review standard for sufficiency of evidence)
State v. Bencivenga, 137 Wn.2d 703 (intent may be inferred from facts and circumstances)
State v. Jackson, 112 Wn.2d 867 (limits use of inference instruction when only attempt is charged)
State v. Grier, 171 Wn.2d 17 (ineffective assistance standard and deference to trial strategy)