State Of Washington v. Steven Peschl, 48365-3

Background

In Nov. 2013 a passerby saw movement in a fenced area of the Skamania County motor pool; deputies found Steven Peschl next to his truck nearby with scrap metal in the truck bed, a fuel jug, and a red siphon hose.
Deputies located a fuel spout on a county vehicle inside a fully enclosed, fenced area north of Rock Creek Drive and smelled gasoline fumes there; scrap metal in Peschl’s truck matched metal stored in a partially fenced southern area.
Peschl told deputies his truck had run out of gas and he was refilling it; he waived a jury trial and elected a bench trial.
The trial court convicted Peschl of second degree burglary (entering a building with intent to commit a crime) and third degree theft and sentenced him to 40 days in jail.
The court later entered findings that the northern area was fully enclosed, that Peschl penetrated that area, and that he did so with intent to steal gasoline.
On appeal Peschl challenged (1) sufficiency of evidence for second degree burglary and certain findings, and (2) ineffective assistance for counsel’s failure to request the court consider the lesser-included offense of second degree criminal trespass.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Peschl)	Held
Sufficiency: Was there substantial evidence that Peschl entered a “building” (a completely fenced area) and had intent to commit a crime therein?	Evidence (witness that someone was in fenced area, fuel spout inside fenced area fitting Peschl’s jug, gasoline odor, siphon/hose near Peschl, matching scrap metal) permits reasonable inference Peschl entered the fenced area intent to steal gasoline.	No direct testimony placed Peschl inside the fenced (northern) area; evidence is speculative and insufficient to prove entry and intent beyond a reasonable doubt.	Affirmed: Circumstantial evidence was sufficient; findings that the northern area was completely enclosed, Peschl entered it, and intended to steal were supported.
Characterization of area as a “building” under burglary statute (fenced area)	A completely enclosed fenced area qualifies as a building for burglary under Engel; trial findings show the northern area was fully enclosed.	The southern and northern areas were conflated; southern area was only partially enclosed and cannot support burglary.	Affirmed: Trial court relied on the northern area (fully enclosed) and Engel supports that a completely fenced area is a ‘‘building.’’
Ineffective assistance: Was counsel deficient for not arguing the lesser-included offense (second degree criminal trespass)?	Counsel reasonably pursued a general denial strategy to preserve claim of innocence; arguing trespass would concede entry and undermine innocence theory; failure to argue lesser-included offense is a legitimate tactic.	Counsel’s omission was deficient and deprived Peschl of a potential lesser conviction and lesser penalty.	Affirmed: No deficient performance—general denial was a reasonable tactic—and no prejudice shown even if deficient; judge could convict sua sponte of a lesser offense.

Key Cases Cited

State v. Homan, 181 Wn.2d 102 (2014) (standard for sufficiency review and reviewing findings after bench trial)
State v. Engel, 166 Wn.2d 572 (2009) (a completely fenced area can qualify as a "building" for burglary)
State v. Breitung, 173 Wn.2d 393 (2011) (general denial strategy can justify not arguing lesser-included offense)
State v. Grier, 171 Wn.2d 17 (2011) (framework for assessing prejudice and tactical choices under ineffective assistance review)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)