The Burglary That Wasn’t
Quentin met Uma[1] at a comic book convention in San Francisco. He had been kicking around the Bay Area after graduating college, taking an odd job here and there, and otherwise “failing to launch,” as his stepmother would put it. Uma was a free spirit, given to impulsive decisions. How much of her unpredictability was an innate to her personality and how much was a side effect of her mental illness was open to debate.
They hitchhiked from San Francisco to Seattle one summer on her suggestion. The instability of life on the road took its toll on the young lovers. Uma started self-medicating with street drugs and eventually ended up in the hospital. Quentin recognized his mother in Uma—she was committed when Quentin was eight years old for threatening to burn down the family home—and he stayed by Uma, hoping to save her from the fate that took his mother away from him.
When Uma got out of the hospital she got a room at a group house for the mentally ill. She had a case manager to look after her and a sweet deal on rent. Quentin’s eccentricities, while easy to spot, didn’t fit so easily into a diagnosis, nor did he care for the label he would need to get the benefits Uma enjoyed.
Quentin stayed with Uma as often as possible, and slept under a bridge on the nights that he didn’t. There was only one shared bathroom on Uma’s floor and the other residents would complain when they had to wait for Quentin to get out of the shower on the nights he stayed over. After a few nights sleeping over at Uma’s he attracted the unwanted attention of Uma’s property manager, who supervised all the properties run by the mental health agency. She warned Uma that she was breaking her lease by having Quentin overnight more than three times a month. She told Quentin to make himself scarce for awhile.
The next day, during a routine walk-through, the property manager saw Quentin hanging out in the kitchen without Uma, who was upstairs dressing. She approached him to warn him about hanging out without his host present when Quentin bolted for the back door. The property manager followed him out but when she couldn’t catch up to him she yelled out “You can’t come back! You’re banned!”
The next night Quentin was back. He hung out with Uma until close to midnight, but they agreed he would leave and sleep elsewhere until things cooled down a bit. After he left, Uma struck up a conversation with her neighbor Marcellus. They talked about astrophysics and the universe, and Uma concluded that Marcellus was “deep.” She invited him to her bedroom to “cuddle,” and the rest followed naturally.
Quentin didn’t sleep much that night. He texted Uma, inviting her to breakfast, and suggested he would meet her early that morning at her place. Quentin didn’t wait for her to text back. His phone was running low on juice so he shut it off and caught the bus to Uma’s. He let himself into the kitchen area through an unlocked door and tiptoed up the stairs. He opened Uma’s door without knocking to find Uma naked in bed with Marcellus.
Quentin wasn’t a fighter by nature but something inside him broke. He was on Marcellus before Marcellus awoke, raining roundhouse blows on him from ear to ear. Marcellus had forty pounds on Quentin and, once he came to his senses, quickly subdued Quentin in a headlock. Rendered helpless, Quentin fought back the only way he knew how, biting Marcellus on his bicep and midsection. Once released from Marcellus’s grip, Quentin climbed out the window and clambered down to the ground. The waiting police, alerted by a resident’s 911 call, arrested Quentin and took pictures of him disheveled and grimacing at the camera, with blood visible on his teeth and around his mouth. Though most of the blood dripped down from a bloody nose he suffered during the fight, the pictures reinforced the narrative of the Certification for Determination of Probable Cause, which described Quentin’s “unprovoked attack,” in which he “viciously bit” the victim.
Quentin was charged with Burglary 1. The State alleged that he “entered or remained unlawfully” in the group home “with the intent to commit a crime against person or property,” and that “while therein he committed the crime of assault.”
Was this a burglary? The Cert made it looked cut and dried. The property manager yellled at him that he was “banned” from the property just a day before. Quentin gave a detailed statement to detectives in which he acknowledged that he had come over “unannounced” and “uninvited.”[2] Quentin couldn’t have known that he would find Marcellus in bed with Uma, but according to the case law, if he formed the intent to commit a crime while heremained unlawfully, it didn’t matter that he didn’t intend to commit the crime when he entered.[3] At the moment he discovered his girlfriend in bed with Marcellus, it was pretty clear that (1) he wasn’t invited or licensed by Uma to stay and (2) he formed the intent to assault Marcellus.
If the “trespass notice” issued by the property manager was lawful, we had an uphill battle. There was always the quasi-nullification defense that this didn’t fit most people’s notion of a burglary, and that Quentin was only reacting in the heat of passion, not premeditating a crime, but the law and the jury instructions would give the jurors the hooks they needed to convict Quentin if they weren’t entirely sympathetic to him.
However, Washington law provides that the license to invite or exclude guests resides with the resident of a rented apartment, not the landlord or his or her representative.[4] In City of Bremerton v. Widell,[5] our Supreme Court held that an invitee or licensee of a tenant cannot be convicted of trespass for entering the common areas of a tenant’s building even when he has been specifically prohibited from doing so by the landlord.
This was great, but even if we could get the property manager’s testimony excluded, we would still have to deal with Quentin’s admissions that he had come over “unannounced” and “uninvited.” Uma was in bed with another man when he let himself into her room. Certainly she would not have invited Quentin over at that moment if he had bothered to ask for her consent. The prosecutor would certainly argue that, regardless of legality of the property manager’s “trespass notice,” Quentin’s entry into Uma’s room was still unlawful.
Our best argument in response was that, from Quentin’s perspective, it was reasonable for him to believe that he had a standing invitation to come over based on his intimate relationship with Uma, and that he couldn’t have expected she would be in bed with another man less than eight hours after he left the previous evening.
It was an appealing argument, but was this “standing invitation” defense recognized by the case law? Yes and no. It is a statutory defense to criminal trespass that “the actor reasonably believed that the owner of the premises, or other person empowered to license access thereto, would have licensed him or her to enter or remain”[6] However, there is no such statutory defense to burglary, nor is there a standard jury instruction which lays out this defense.
Still, if criminal trespass is a lesser included offense of burglary, shouldn’t the same statutory defenses apply? Washington courts have not definitively answered this question. Division III held in State v. J.P. [7]that the statutory defenses to criminal trespass should be incorporated as defenses to the unlawful entry element of burglary, at least in a case where the defendant alleges the entered property was abandoned. The court concluded that the failure to give the instruction in that case was harmless because the property was not abandoned. Subsequent Division III cases, while acknowledging State v. J.P. as good law, have upheld lower courts’ refusal to give an instruction on the statutory defenses, finding in particular cases that the instruction wasn’t necessary to allow the defendant to argue his theory of the case.[8] Division II, on the other hand, has held that by its plain language the statutory defenses to criminal trespass apply only to the criminal trespass statute itself.[9] Division I, the court that counted for me, had not weighed in.[10]
This was fertile ground to advance this issue, and a pretty good set of facts to do so. Considering that Quentin had an ongoing intimate relationship with Uma, that he left that night only to honor the overnight guest provision in the lease, that he left with the intention to come back the next day, and he communicated that intent via text message to his then-girlfriend, it sure seemed reasonable for him to expect he would be welcome. Without a reasonable belief instruction our defense would be hamstrung.
I wouldn’t have to test this issue. We drew a good judge for trial—a former municipal court judge well-versed in trespass law—who quickly dispensed with the Bremerton issue during motions in limine, excluding the property manager’s testimony from trial. Reassessing her position, the prosecutor asked for our reports on our interviews with Uma, who had refused to speak with the police and avoided speaking with the prosecutor. It was always my practice not to record friendly witness interviews, so as not to have to turn over “statements” of witnesses. I politely declined, citing the discovery rules and State v. Yates.[11] Now having to build a case upon the testimony of a witness who was friendly to the defense and whom she had yet to talk to, the prosecutor thought better of the prosecution. She called me over the lunch hour and offered me the Assault 4 we had wanted all along.
[1] Names and details have been changed to protect the not guilty.
[2] WPIC 65.02 states that a person enters or remains unlawfully when he is “not then licensed, invited, or otherwised privileged to so enter or remain.”
[3] See, e.g. State v. Collins, 110 Wn.2d 253 (1988).
[4] State v. Fox, 82 Wn.2d 289, 292-93 (1973); City of Seattle v. McCready, 124 Wn.2d 300 (1994).
[5] 146 Wn.2d 561 (2002)
[6] RCW 9A.52.090(3).
[7] 130 Wn.App. 887 (2005)
[8] State v. Ponce, 166 Wn.App. 409 (2012); State v. Cordero, 170 Wn.App. 351 (2012).
[9] State v. Jensen, 149 Wn.App. 393 (2009).
[10] In State v. Schumann, 177 Wn.App. 1005 (2013), an unpublished opinion, Division I assumed, without deciding, that State v. J.P. controlled. The court held that it was unnecessary to reach the issue because the statutory defense of abandonment requires actual abandonment, not a reasonable belief in abandonment, and there was no evidence of actual abandonment in the case before it.
[11] 11 Wn.2d 793 (1988).
