State Of Washington v. Gary Lee Noble, 47873-1

Background

Noble entered a vacant but privately owned mobile home while waiting for a bus and slept there; the owner, Allen, had purchased the home to repair and sell it and had been maintaining utilities and making repairs.
A neighbor heard noise; Allen inspected, found signs of entry (shed handle broken, gate lifted, curtains hung), confronted Noble, and police arrested Noble nearby. A search incident to arrest produced a baggie of methamphetamine.
The State charged Noble with burglary and possession. A first amended information charged residential burglary, possession of a controlled substance, and possession of stolen property; Noble pleaded guilty the same day to possession of a controlled substance.
After accepting the guilty plea, the State filed a second amended information that omitted the controlled substance count; Noble did not object and was later tried on the remaining charges.
The trial court barred arguing abandonment as a defense to residential burglary at voir dire and declined to instruct on abandonment for burglary; the jury acquitted Noble of residential burglary but convicted him of the lesser included offense, first degree criminal trespass, and of possession of stolen property.
On appeal Noble challenged (1) sentencing on the plea after the amended information omitted the charge, (2) exclusion of an abandonment instruction for residential burglary, and (3) ineffective assistance for failure to request an abandonment instruction for criminal trespass. The court reviewed only the ineffective assistance claim and affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of information / plea validity	Noble: second amended information omitted controlled substance count, so sentencing on that plea was error	State: Noble pleaded guilty to the charge as contained in the first amended information; plea was knowing and voluntary	Court refused to review (no manifest constitutional error); plea was knowing, voluntary, and accepted before omission, so no prejudice
Abandonment defense to residential burglary	Noble: trial court erred by refusing to instruct/allow argument that property was abandoned	State: abandonment is not a defense to residential burglary; trial court relied on precedent	Moot — jury acquitted on burglary, so no effective relief can be given
Ineffective assistance for failing to request abandonment instruction for criminal trespass	Noble: counsel should have requested an abandonment instruction for trespass; sufficient evidence existed	State: owner retained an interest; evidence showed active repair and intent to sell, not abandonment	Court: No ineffective assistance — defendant not entitled to instruction because record lacked substantial evidence of abandonment; counsel’s omission not prejudicial
Burden on abandonment defense to trespass	Noble: argued his subjective belief supported instruction	State: burden requires property actually abandoned; statutory defense negates unlawful presence and State must disprove it	Held: subjective belief insufficient; owner’s actions (repairs, utilities, intent to sell) showed property not abandoned

Key Cases Cited

State v. Gordon, 172 Wn.2d 671 (discussing RAP 2.5 and manifest constitutional error)
State v. Weyrich, 163 Wn.2d 554 (guilty plea must be knowing, voluntary, and intelligent)
State v. Holsworth, 93 Wn.2d 148 (charging document must include essential elements to inform plea)
State v. Kirwin, 165 Wn.2d 818 (preview merits to determine manifest constitutional error)
State v. J.P., 130 Wn. App. 887 (abandonment defined; preparing vacant home for sale can show not abandoned)
State v. Olson, 182 Wn. App. 362 (statutory defenses to trespass negate unlawful presence; abandonment defense applies to trespass)
State v. Grier, 171 Wn.2d 17 (standard for ineffective assistance of counsel)
State v. Thomas, 109 Wn.2d 222 (failure to request instruction can be ineffective assistance)
State v. Werner, 170 Wn.2d 333 (defendant entitled to instruction if substantial evidence supports it)