State v. BrownState v. Brown
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- Before:
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Earl Thomas Brown appeals from his conviction of first degree criminal trespass.
On the evening of April 29, 1985, police responded to an аlarm at the Puget Sound Tire Company where Brown was located in the fenced area crouched down behind a stack of tires. The Puget Sound Tire Company consists of a main building and a large fenced area used to enclose large truck tires. The manager of Puget Sound Tire arrived at the scene and confirmed that he had locked up the area at 6:30 that evening and that Brown did not have permission to
Discussion
The sole issue on appeal is whether the fenced area of Puget Sound Tire Company constitutes a “building” within the meaning of the first degree criminal trespass statute,
An examination of the first and second degree criminal trespass stаtutes before and after their amendment in July 1979 is instructive.
Formerly, criminal trespass in the first degree provided:
(1) A person is guilty of criminal trespass in the first degree if he knowingly enters or remains unlawfully in a building or on rеal property adjacent thereto or upon real property which is fenced or otherwise enclosed in a manner designed to exclude intruders.
(2) Criminal trespass in the first degree is a gross misdemeanor.
(Italics ours.) Former
The former statute for criminal trespass in the second degree stated:
(1) A person is guilty of criminal trespass in the second degree if he knowingly enters or remains unlawfully in or upon premises of another.
(2) Criminal trespass in the second degree is a misdemeanor.
Former
Criminal trespass in the first degree now provides:
(2) Criminal tresрass in the first degree is a gross misdemeanor.
Criminal trespass in the second degree now provides:
(1) A person is guilty of criminal trespass in the second degree if he knowingly enters or remains unlawfully in or upon premises of another under circumstances not constituting criminal trespass in the first degree.
(2) Criminal trespass in the second degree is a misdemeanor.
In amending the first degree criminal trespass statute, language regarding “adjacent real property” and “fenced” or “enclosed” real property was specifically repealed. Despite the Legislature‘s attempt to clarify the statute, there is still confusion regarding what constitutes a “building“. Under the chapter dealing with burglary and trespass,
The State relies on the broad definition of “building” found in the definitional section of RCW Title 9A in the Washington Criminal Code. It provides:
In this title unless a different meаning plainly is required:
(5) “Building“, in addition to its ordinary meaning, includes any dwelling, fenced area, vehicle, railway car, cargo container, or any other structure used for lodging of persons or for carrying on business therein, or for the use, sale or deposit of goods; each unit of a building consisting of two or more units separately secured or occupied is a separate building;
The word “building” was expansively defined in State v. Fleiger, 45 Wn. App. 667, 726 P.2d 1257 (1986), in the context of burglary statutes. See also State v. Couch, 44 Wn. App. 26, 720 P.2d 1387 (1986); State v. Lira, 45 Wn. App. 653, 726 P.2d 1015 (1986), review denied, 107 Wn.2d 1028 (1987); State v. Tyson, 33 Wn. App. 859, 658 P.2d 55 (1983). These cases apply only to the burglary statutes; they do not apply to the criminal trespass statutes. House Judiciary Committee Bill Files 307, at 5 (1979).
There is no doubt regarding the meaning of “building” in light of the rеport language accompanying the 1979 amendments. It provides in part:
The effect of adoption of the amendments contained in these two sections would be to narrow the scope of the gross misdemeanor first degree criminal trespass offense to trespаsses in a building in its ordinary sense. The reason for the necessity of the odd appearing phrase “other than a fenced area” is because of thе definition of “building” inRCW 9A.04.110(5) which includes fenced areas for purposes of using the term “building” elsewhere in the criminal code, in particular in such areаs as arson or burglary. Moreover, all other types of trespasses other than in a building would be covered by the second degree criminаl trespass offense graded at the misdemeanor level.
(Italics ours.) House Judiciary Committee Bill Files 307, at 5.
The report language goes on to explain the purpose of the amendments as follows:
The difficulty with present law is that the existing language which adds to trespasses in a building trespasses on various adjacent property or fenced property clearly overlaps with the definition of “premises” which forms the coverage base of the second degree offense. As such, this means that proof of the same elements of an offensе could produce convictions of either a gross misdemeanor or a misdemeanor offense depending on which degree of trеspass the prosecutor chooses to charge.
The Legislature clearly intended to exclude fenced areas from the definition of “building” in the amended first degree criminal trespass statutе. Rather, fenced areas were intended to be covered by the broader definition of “premises” in the second degree criminal trespass statute. Washington case law is consistent with the Legislature‘s intent to exclude certain areas from the scope of the first degree criminal trespass statute. See State v. Brittain, 38 Wn. App. 740, 689 P.2d 1095 (1984) (second degree criminal trespass applies to unlawful entry on private property not constituting а building, such as fenced land); State v. Mounsey, 31 Wn. App. 511, 518, 643 P.2d 892 (second degree criminal trespass applies to unlawful entry on premises other than a building, such as open grоunds or yards), review denied, 97 Wn.2d 1028 (1982).
The essential elements of criminal trespass in the first degree are not met. Brown did not enter a “building” within the meaning of
Scholfield, C.J., and Swanson, J., concur.
Reconsideration denied June 16, 1988.