State v. SteinbachState v. Steinbach
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- Before:
- Rosellini
Lead Opinion
Pеtitioner Terri Steinbach challenges her conviction of second degree burglary. The conviction arises *461from an incident in which Terri, then 14, entered her mother‘s home after being plаced in alternative residential placement. We hold that the facts of this case cannot sustain a conviction of second degree burglary and reverse. State v. Steinbach, 35 Wn. App. 473, 667 P.2d 641 (1983).
The facts leаding up to this action are as follows: On March 2, 1982, petitioner Terri Steinbach and three or four companions entered, through a window, a residence located at 11063 18th Southwest in Seattle. Verna Garcia, Terri‘s natural mother, lived in the residence at the time of the entry. The group removed several items from the house, including an afghan belonging to Terri, three rifles, several cans of beer and soda pop and a cigarette lighter. Police officers recovered these items in an alley behind the house.
Earlier in 1981, Terri had lived with her mother in the residence on 18th Southwest. In the fall of that year, however, Terri and her mother encountered difficulties with the living arrangement and Terri petitioned the court for alternative residential placement under the provisions of
During the fact-finding hearing, Terri‘s mother testified that she had told Terri that she “could not stay there because she was not allowed by Court to remain in our home.” Report of Proceedings, at 15. She told Terri she could visit if she called first. Terri‘s mother had not absolutely prohibited Tеrri from entering the home.
The language of the alternative residential placement order did not specify whether Terri could return or visit the home. The order clearly stated that Terri was to reside in a foster home.
The trial court found that Terri entered the home with the intent to commit a crime and entered judgment convicting her of second degree burglary under
Terri was convicted of second degree burglary in violation of
A person is guilty of burglary in the second degree if, with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a building other than a vehicle.
(Itаlics ours.) The second degree burglary statute requires the State to prove (1) intent to commit a crime and (2) unlawful entry. Terri does not deny that the State proved entry. She contends that thе facts, as presented at trial, did not establish unlawful entry.
The phrase “enters or remains unlawfully” is defined in
(3) “Enters or remains unlawfully“. A person “enters or remains unlawfully” in or upon premises when he is not then licensed, invited, or otherwise privileged to so еnter or remain.
Terri asserts that her entry into her mother‘s home was privileged and therefore could not be unlawful. We agree.
The Court of Appeals ruling was based upon the faulty reаsoning that solely because Terri had been ordered to reside outside of the home under
alternative rеsidential placement completely, though temporarily, removes the minor child from the parental home and, in effect, establishes a new legal residence for the child . . .
State v. Steinbach, supra at 478. As such, Terri was said to be barred from claiming any right or privilege to enter her mother‘s residence. Steinbach, at 479.
This holding misperceives the nature of an alternative residential placement order. Such an order does not automatically terminate a child‘s privilege to enter the *463parental home. To have this effect, the order must specifically state this fact. This interpretation of the order‘s legal effect coincides with our previous interpretation of the alternative residential placement statute. In re Sumey, 94 Wn.2d 757, 621 P.2d 108 (1980). We observed that such an оrder had only limited effect on the parent-child relationship. Sumey involved the constitutionality of
Moreover, Sumey reflects our consistent belief in the importance of views оf the parent-child relationship. See In re Adoption of Buehl, 87 Wn.2d 649, 555 P.2d 1334 (1976) and In re Rankin, 76 Wn.2d 533, 458 P.2d 176 (1969). The interpretation given the statute by the Court of Appeals disrupts the parent-child relationship beyond that intended by the law.
Finally, the limited effect of an alternative residential placement order distinguishes this case from In re G.L., 73 Ill. App. 3d 467, 391 N.E.2d 1108 (1979), which was relied upon by the Court of Appeals. In G.L., the Illinois appellate court affirmed a minor‘s conviction of burglary of the parental home. In determining whether there was sufficient evidence to justify a finding of unlawful entry, the Illinois court focused upon the fact that legal custody of the juvenile had been placed with the State. No chаnge in legal custody occurred in Terri‘s case.
Moreover, the juvenile in G.L. was expressly told not to return home. Terri, on the other hand, was never informed by her mother that she was absolutely prohibited from *464returning. Nor did the placement order so specify. Consequently, Terri could assume that she was privileged to enter her parent‘s home.1 The court‘s reliance on this case was therefore misplaced.
Our conclusion that Terri was improperly convicted under the burglary statute makes it unnecessary to reach Terri‘s second assignment of error regarding the concurrency of the burglary statute and
Petitioner‘s conviction is reversed.
Williams, C.J., Utter and Dore, JJ., and Cunningham, J. Pro Tern., concur.
Notes
This оpinion does not address the issue of whether conviction for burglary is appropriate where either the alternative residential placement order or the parent еxpressly prohibits the child‘s return to the home.
Dissenting Opinion
(dissenting) — Prior to March 2, 1982, Terri Steinbach petitioned for and was granted by court order an alternative residential placement (ARP). Terri had been informed by her mother that she was “allowed to visit us but not to be there at any time nor to reside there.” Her mother also testified Terri could visit if she called first but that Terri had not called to visit on March 2, 1982. It was on this date that Terri and several companions entered the house by forcible entry through a boarded-up window. The question before the court is whether this forcible entry by Terri wаs “otherwise privileged” (
The majority answers in the affirmative and cites In re Sumey, 94 Wn.2d 757, 621 P.2d 108 (1980) in support of its position. Sumey involved the question of whether the residential placement procedures of former
Furthermore, as the Court of Appeals noted in State v. Steinbach, 35 Wn. App. 473, 667 P.2d 641 (1983), this court has said that an ARP “is predicated on the existence of family сonflict of sufficient magnitude that the parents and child are unable to live in the same home even with the assistance of counseling or other rehabilitative social services.” In re Sumey, supra at 761.
Thus, whеn there has been an ARP, the parents have no right to prevent the placement nor does the minor child have any privilege to be in the house until the ARP is discontinued under the terms of
The majority distinguishes In re G.L., 73 Ill. App. 3d 467, 391 N.E.2d 1108 (1979) because the legal custody of the minor had been placed with the State and because G. L. was expressly told by his parents not to enter thе family home until he was no longer on drugs. The factual distinctions between this case and In re G.L. are irrelevant. Here, the minor child, at her own request, was placed outside the homes of eithеr of her natural parents. The testimony indicates her mother, whose home was broken into, did not know where Terri was living. There is no dispute but that Terri entered the residence of her mother аt a time when she was not allowed in the home and that she entered with intent to commit a crime by forcibly removing a board from a window in the back of the residence.
I concur with the observation of the Court of Appeals that there
*466was sufficient evidence by which a rational trier of fact could find beyond a reasonable doubt that Steinbach was not licensed, invited, or otherwise privileged to enter and remain in her mother‘s residence on the date of the burglary.
State v. Steinbach, 35 Wn. App. at 480.
The majority cites no authority nor do I believe either authority or common sense would find that under these circumstances Terri had a privilege to enter her mother‘s home. I would affirm.
Brachtenbach, Dimmick, and Pearson, JJ., concur with Dolliver, J.