State v. West, 571 P.2d 237

Pearson, C.J.

Defendants West and Sipes 1 were convicted of attempted second-degree burglary and possession of burglary tools. On appeal, they contend that (1) the trial court erred by rеfusing to grant their motions to dismiss for lack of sufficient evidence, and (2) the trial court erred by refusing to instruct the jury that criminal trespass in the second degree is a lessеr-included offense of attempted second-degree burglary. We disagree and affirm the judgment.

West and Sipes were arrested on the evening of August 4, 1976, near the rear delivery door of a supermarket in Vancouver, Washington. The arresting officers were called to the scene by a neighbor, who became suspiсious when he saw two men furtively making their way around the back of the market approximately one-half hour after closing. While waiting for the sheriff's deputies to arrive, the neighbor drove by the market in his car. He saw a man with shoulder-length hair, later identified as West, acting as a lookout for Sipes, who appeared to be prying open the market's back door with a wrecking bar.

Shortly thereafter the deputies arrived and arrested the defendants as they attempted to flеe. Sipes was wearing brown cotton gloves when arrested, and a pair of similar gloves was found nearby. Lying on the ground next to the back door of the market wеre a sledge hammer, a wrecking bar, and a large iron chisel. Several feet away the deputies found a suitcase containing a small iron chisel, a mеdium-sized iron chisel, and a saw. There were several indentation marks in the door which the store owner said had not been there previously.

No tests were madе to determine whether the marks in the door were made by the tools. No fingerprints or other identifying marks could be found on the suitcase or tools. Furthermore, the nеighbor ‍​‌‌​‌​​‌‌‌‌‌‌‌‌​‌​​​‌​‌​​​‌‌​‌‌‌‌‌‌‌‌‌​‌‌​‌​​​‌‌‍admitted under cross-examination that when he first observed the defendants, he did not see them carrying anything. The defendants themselves made no statements and did nоt testify.

The defense claims that the foregoing facts are insufficient evidence of possession of burglary tools because there was no showing of aсtual or constructive possession by West or Sipes. We disagree. The neighbor's observation of Sipes using a wrecking bar to pry open the door, togethеr with his presence in the exact area where the tools were discovered moments later, constitutes sufficient direct and circumstantial evidence of his actual or constructive possession of the tools. State v. McDonald, 74 Wn.2d 474, 445 P.2d 345 (1968).

State v. Callahan, 77 Wn.2d 27, 459 P.2d 400 (1969), cited by defendants is distinguishable. In Callahan the court held that a momentary handling of narcotics does not establish actual possеssion. No evidence was introduced to show that the defendant had exercised common control over the contraband or the premises on which it was found. The contraband was, in fact, owned by another. In this case Sipes was observed in physical control of one tool and using it. He and defendant West, who was a direct participant in the attempted break-in, were observed in the place where the tools were found. No one else was seen in the area during the entire episode; the defendants were apprehended soon after they were observed and before they could leave. Thesе circumstances permit a reasonable inference that both parties were in actual possession of the tools. At the very least, the circumstances permitted a reasonable inference that the parties had joint constructive possession 2 of the tools by virtue of their joint participаtion in the crime and their dominion and control over the tools at the time of the crime. See State v. McDonald, supra; State v. Wheat-ley, 10 Wn. App. 777, 519 P.2d 1001 (1974)._

The defendants next contend that the evidence of intent was insufficient to prove attempted second-degree ‍​‌‌​‌​​‌‌‌‌‌‌‌‌​‌​​​‌​‌​​​‌‌​‌‌‌‌‌‌‌‌‌​‌‌​‌​​​‌‌‍burglary. The crime of attempted second-degree burglary consists of the following elements:

(1) An act which is a substantial step toward

(a) entering or remaining unlawfully

(b) in a building

(c) with intent to commit a crime against a person or property therein

(2) with intent to so enter or remain unlawfully. RCW 9A.28.020, .52.030.

Criminal intent may be inferred from conduct if it is plainly indicated as a matter of logical probability. State v. Lewis, 69 Wn.2d 120, 124, 417 P.2d 618 (1966); see State v. Davis, 73 Wn.2d 271, 289, 438 P.2d 185 (1968). The defendants here were observed lurking near the rear entry of a supermarket which had been locked for the evening. Sipes placed a crоwbar in the door and attempted to pry it open while West kept a lookout. When the police arrived, the pair tried to flee. Sipes was found to bе wearing workman's gloves. Another pair of gloves was found nearby, together with a number of tools typically used by burglars. Inspection of the market's back door showed several recent pry marks. Drawing the inferences from the facts in the light most favorable to the prosecution, State v. Randecker, 79 Wn.2d 512, 487 P.2d 1295 (1971), it is clear that there is substantial evidenсe from which a jury could conclude that the defendants intended to "commit a crime against a person or property" in the supermarket building and that they intеnded to commit a burglary. See also State v. Braxton, 10 Wn. App. 1, 516 P.2d 771 (1973).

Lastly, defendants assign error to the trial court's refusal to instruct the jury on second-degree criminal trespass. A criminal defendant is entitled ‍​‌‌​‌​​‌‌‌‌‌‌‌‌​‌​​​‌​‌​​​‌‌​‌‌‌‌‌‌‌‌‌​‌‌​‌​​​‌‌‍tо a jury instruction if (a) there is a lesser offense necessarily included in the offense charged, and (b) there is sufficient evidence upon which the jury could make а finding as to the lesser-included offense. State v. Claybourne, 14 Wn. App. 314, 316, 541 P.2d 1230 (1975); State v. Barr, 1 Wn. App. 109, 111, 459 P.2d 981 (1969). See State v. Snider, 70 Wn.2d 326, 422 P.2d 816 (1967). The trial court properly refused the defendant's proposed instruction because criminal trespass in the seсond degree is not a lesser-included offense in attempted second-degree burglary.

"A lesser included offense exists when all of the elements of the lesser offense are necessary elеments of the greater offense." State v. Roybal, 82 Wn.2d 577, 583, 512 P.2d 718 (1973). Criminal trespass is not a lesser-included offense in attempted burglary because an attempt does not necessarily invоlve a criminal trespass. Only a "substantial step" toward committing a burglary is required. RCW 9A.28.020. While an attempted burglary often involves a criminal trespass, a substantial step tоward ‍​‌‌​‌​​‌‌‌‌‌‌‌‌​‌​​​‌​‌​​​‌‌​‌‌‌‌‌‌‌‌‌​‌‌​‌​​​‌‌‍committing a burglary may be made without necessarily committing a criminal trespass.

For example, in People v. Gibson, 94 Cal. App. 2d 468, 210 P.2d 747 (1949), a conviction for attempted second-degree burglary was upheld whеre the defendant was arrested in an alleyway near the rear of a store, where he had placed a ladder on the ground, parallel to a building, and was observed looking up at the building. There was no showing that the defendant ever encroached on the premises. See also Rumfelt v. United States, 445 F.2d 134 (7th Cir. 1971), cert. denied, 404 U.S. 853, 30 L. Ed. 2d 94, 92 S. Ct. 92 (1971) (defendant, armed with rifle and masked, forсed hostage to accompany him to bank; the bank door was locked and defendant fled without entering premises); People v. Sullivan, 173 N.Y. 122, 65 N.E. 989 (1903) (defendant was arrested while recоnnoitering building and in possession of burglary tools); Model Penal Code § 5.01(2), U.L.A. 499 (1974).

Judgment affirmed.

Petrie and Reed, JJ., concur.

Reconsideration denied November 23, 1977.

Review denied by Supreme Court May 12, 1978.

Notes

1

Sipes was charged under that name, which he had given to the police, but contends his real name is Cleere.

2

It is now the accepted rule that:

Actual possession means that the goods are in the personal custody of the person charged with possession; whereas, constructive possession mеans ‍​‌‌​‌​​‌‌‌‌‌‌‌‌​‌​​​‌​‌​​​‌‌​‌‌‌‌‌‌‌‌‌​‌‌​‌​​​‌‌‍that the goods are not in actual, physical possession, but that the person charged with possession has dominion and control over the goods. State v. Walcott, 72 Wn.2d 959, 435 P.2d 994 (1957).

State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969).

There is no question that Sipes had actual possession of one of the tools; direct evidence shows that he possessed the wrecking bar. See State v. Werry, 6 Wn. App. 540, 494 P.2d 1002 (1972); State v. Emerson, 5 Wn. App. 630, 634-35, 489 P.2d 1138 (1971). As to the remaining tools, the circumstantial evidence warranted an inference that both West and Sipes either actually possessed the tools at the time they were seen, or the circumstantial evidence was sufficient to warrant a reasonable inference that both defendants had dominion and control over the tools at the time of the attemptеd entry. See State v. Turner, 4 Wn. App. 448, 481 P.2d 906 (1971).

As our Supreme Court recently stated,

[T]he cumulative eflFect of a number of factors may be a strong indication of constructive possession. That is, we will look at the totality of the situation to determine if therе is substantial evidence tending to establish circumstances from which the jury can reasonably infer that the defendant had dominion and control of the drugs and thus was in constructive possession of them.

State v. Partin, 88 Wn.2d 899, 907, 567 P.2d 1136 (1977). See also State v. Hults, 9 Wn. App. 297, 307-08, 513 P.2d 89 (1973) (Pearson, C.J., dissenting).

Case Details

Case Name: State v. West

Court Name: Court of Appeals of Washington

Date Published: Nov 10, 1977

Citations: 571 P.2d 237; 18 Wash. App. 686; 1977 Wash. App. LEXIS 2049; 2680-2

Docket Number: 2680-2

Court Abbreviation: Wash. Ct. App.