IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
No. 71434-1-1 STATE OF WASHINGTON, Respondent, o r-o cOO

v. UNPUBLISHED OPINION ro —-t—\
o ~n r, •"'>_ "'' r"--of ;-> -o ri ANDREW JASON BOYLAN; NICHOLAS SPENCER CHRISTIN, Appellants. FILED: July 21, 2014 v£>
Verellen, A.C.J.

— Nicholas Christin and Andrew Boylan appeal their convictions for residential burglary, arguing there was insufficient evidence that the home they burglarized was a "dwelling" ordinarily used for lodging. Although the house had been vacant for an extended period oftime, there was evidence sufficient to present a fact question for thejury ofwhetherthe building was ordinarily used by a person for lodging. Christin and Boylan also argue thatthe defense ofabandonment should apply to the crime ofresidential burglary. But because this court recently held thatthe statutory abandonment defense applies only to first and second degree trespass, not to residential burglary, we affirm. FACTS Ruth Longoria owned a 1,800 square foot, three bedroom house in rural Thurston County. In2007, after living inthe house for 15 years, she moved out ofNo. 71434-1-1/2
state. She took several appliances outofthe house and put it up for sale. Although the house remained vacant, Longoria had friends check on the property from time to time. Her realtor informed herthat as recently as January 2012, he had taken potential buyers to the house and thatthe house was infine condition. By March 2012, the house had been vandalized extensively and was in disrepair. On March 3, 2012, Christin and Boylan entered the house to remove items to sell as scrap. Neighbors saw them and called police. Officers arrived as Christin and Boylan were leaving intheir truck with a sink, wiring, and pipes. Officers arrested both men. The State subsequently charged Christin and Boylan with residential 

### burglary.1 At trial, the court allowed Christin and Boylan to argue that the building was not a dwelling and thatthe State had failed to meet its burden ofproofas to thatelement ofresidential burglary. The court also granted the State's requestto amend the information to include an alternative charge of second degree burglary, which omitted 

### the elementthat the building be a dwelling.2 Christin and Boylan did not objectto the amended information or to the proposal to give thejury the option to convict on the second degree burglary charge.



### 1"A person is guilty ofresidential burglary if, with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling otherthan a vehicle." RCW 9A.52.025 (1) (emphasis added). 

### 2"Aperson is guilty ofburglary inthe second degree if, with intent to commit a crime against a person or property therein, he or she enters or remains unlawfullyin a buildingotherthan a vehicle or a dwelling." RCW 9A.52.030(1) (emphasis added).No. 71434-1-1/3 The trial court instructed thejury as to both offenses, along with the lesser included of 

### criminal trespass in the firstdegree.3 There were no objections to the jury instructions. Both men were convicted ofresidential burglary. Christin and Boylan appeal. ANALYSIS Christin and Boylan do not challenge the sufficiency ofthe evidence thatthey entered the building and removed the property. They argue thatthe evidence was insufficientto establish thatthe building was a dwelling and thatthe State "failed to 

### disprove [thedefense of] abandonment."4 Neitherargument is persuasive. Achallenge to the sufficiency of the evidence admits the truth of the State's evidence, and all reasonable inferences from the evidence must be drawn in favor of 

### the State and interpreted most stronglyagainstthe defendant.5 An appellate court must determine whether any rational trier of fact could have found the elements of the 

### offense beyond a reasonable doubt.6 The elements may be established by direct or circumstantial evidence.7 An appellate court will deferto the trier of fact on issues of 

### conflicting testimony, credibilityof witnesses, and the persuasiveness oftheevidence.8 A conviction forresidential burglary requires proofthatthe offenderunlawfully entered or remained in a dwelling with intentto commit a crime against persons or



### 3"A person isguilty ofcriminal trespass in the firstdegree ifhe orshe knowingly enters or remains unlawfullyin a building." RCW 9A.52.070(1) (emphasis added). 4Appellant Christin's Br. at 6. 5 State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). 6State v. Ware, 111 Wn. App. 738, 741, 46 P.3d 280 (2002). 7State v. Thompson. 88 Wn.2d 13, 16, 558 P.2d 202 (1977). 8State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).No. 71434-1-1/4 

### property therein.9 A "dwelling" is defined as "any building or structure, though movable
or temporary, or a portion thereof, which is used or ordinarily used by a person for 

### lodging."10 Whethera particular building is a dwelling turns on "all relevantfactors" and is generally decided bythejury.11 Here, there was ample evidence supporting the conclusion that the building was a dwelling. Thejury heard the owner's testimony that she used the building as a house and that she was trying to sell it for residential use. As recently as January 2012, two months before the burglary, the realtor showed the house to prospective buyers. 

### There was conflicting testimony aboutthe extent ofthe house's disrepair at the time ofthe burglary. Witnesses offered accounts about conditions inside and outside the house. Thurston County Sheriff's Deputy Michael Brooks testified that he had been out to the house prior to the March burglary and that he found the house in a
similar condition. 

### The presence ofappliances and household fixtures inthe truck supports the inference that Christin and Boylan removed them bytearing them out from the walls. 

### And viewed in the lightmostfavorable to the State, the presence ofdebris inside the residence could be determined to be a result ofthe burglary itself. The record does

9RCW9A.52.025(1). 10RCW9A.04.110. 11 State v. McDonald. 123 Wn. App. 85, 90-91, 96 P.3d 468 (2004); see also 

### State v. Murbach, 68 Wn. App. 509, 513, 843 P.2d 551 (1993) (garage attached to a 

### home was part of a dwelling); State v. Neal, 161 Wn. App. 111, 114, 249 P.3d 211 (2011) (tool room inapartment building was a dwelling).No. 71434-1-1/5
not clearly reflectwhether a person passing by could gauge the extent ofthe interior damage. But any conflicts were for thejury to resolve. Thejury heard the arguments from both the prosecutor and defense counsel about whetherthe house was a dwelling. Viewing the evidence in the light most favorable to the State, there was sufficient evidence that itwas an individual's home and was "ordinarily used by a person for lodging," even if ithad not been so used for
an extended period oftime. Christin contends that "[n]o published decisions inWashington have clarified when an unoccupied house ceases to be a dwelling," and argues that "other 

### jurisdictions have addressed the issue."12 But he does notanalyze the cases he cites, refers to no specific portion ofthem, and makes no comparison between the language ofthe statutes from otherjurisdictions and Washington's statute. We need not 

### address such passing treatmentof an issue.13 Evenifthe analysis was more comprehensively briefed, the decisions ofotherstate courts interpreting their own statutes are ofquestionable utility indetermining whetherthe building in this case was 

### a "dwelling," a term expressly defined in Washington law.14

12 Appellant Christin's Br. at 5 (citingState v. Evans. 376 S.C. 421, 656 S.E.2d 782 (2008); Sheffield v. State. 881 So.2d 249 (2003); Washington v. State. 753 So.2d 475 (1999); People v. Walker. 212 III. App. 3d 410, 570 N.E.2d 1268 (1991); People v. Smith. 209 III. App. 3d 1091, 568 N.E.2d 417 (1991); Rash v. Commonwealth, 9 Va. App. 22, 383 S.E.2d 749 (1989); State v. Kowski. 423 N.W.2d 706 (1988)). 13 State v. Thomas. 150 Wn.2d 821, 868-69, 83 P.3d 970 (2004), State v. Johnson. 119Wn.2d167, 171, 829 P.2d 1082 (1992). 14 Division Two ofthis court observed that "[according to most other 

### jurisdictions, the question whethera building is a residence turns on all relevant factors and is generally a matter for the jury to decide." McDonald 123 Wn. App. at 91 &n.19 (footnotes omitted) (citing out-of-state cases).No. 71434-1-1/6 Christin and Boylan also assertthatthe defense ofabandonment, applicable to


### a prosecution for criminal trespass of an abandoned building, also applies to 

### residential burglary. We recently rejected the identical argument in State v. Olson.15 The abandonmentdefense does not apply to residential burglary, and there was no trial court error. Affirmed.

WE CONCUR:



### 15 State v. Olson. No. 69537-1-1, slip op. at 15 (Wash. Ct. App. July 7, 2014).