### FILED April22, 2014 In theOffice ofthe ClerkofCourt WA StateCourtofAppeals, Division III

IN THE COURT OF APPEALS OFTHE STATE OFWASHINGTON DIVISION THREE STATE OFWASHINGTON, ) No. 

### 32154-1-111 ) Respondent, ) ) 

### v. ) ) ISAIAH NEWTON, JR., ) UNPUBLISHED OPINION ) Appellant. ) BROWN, J.-IsaiahWilliam Newton Jr. appeals his convictionsforfirst degree burglary and resisting arrest. But his briefing does not mention his resisting arrest conviction, exceptone.sentence suggesting cumulative error based on prosecutorial misconduct infected the entiretrial. Atthe outset, we disagreewith his suggestion and affirm his resisting arrest conviction. However, he persuasively contends insufficient evidence supportsthe burglary element of intentto commit a crime, an error**unders~oring** his interrelated concerns overthe trial court's decision to givethe pattern inference ofintentjury instruction. Because his evidence sufficiency challenge is dispositive, we do not reach his othererrorclaims or pro se statementofadditional groundsfor review. Therefore, we reverse his burglary conviction and remand to dismiss that charge.No. 32154-1-111 State v. Newton FACTS The State charged Mr. Newton with first degree burglary and resisting arrest. Generally, while in a hallucinogenic state and believing God had instructed him his mother could walk, Mr. Newton, with laterdisputed permission, climbed through a bedroom window ofhis disabled mother, Volinda Williams. Ms. Williams fell when he tried to get herto walk. Mr. Newton resisted Tacoma police who responded to the

scene. Both Ms. Williams, who rents her bedroom from Kathie Cooper, and Ms. Cooper gave exculpating trial testimonythat contradicted their initial reports to police. Mr. Newton visited Ms. Williams in herbedroom up to fourtimes a day, helping her in and out ofher bed and wheelchair, assisting her in getting dressed, and bringing herfood. Ms. Williams cannot walk unassisted and has been confined to a wheelchair about 20 years. Specifically, beginning at 12:51 a.m. on May 18, 2012, Mr. Newton called Ms. Williams threetimes. In the first and second phone calls, he said he wanted tovisit her and shetold him notto come over until morning. In thethird phone call, "[h]e was talking crazy," saying he wanted to share with herthat he spoke with God, whotold him she could walk. Report of Proceedings (RP) at 62. He told her hewas underthe influence ofa controlled substance thatthe State later argued was the hallucinogen phencyclidine, commonly known as PCP. She again told him notto come over until morning. Soon, Mr. Newton began pounding on thefront doorand ringing the doorbell to Ms. Cooper's duplex unitwhile yelling "mama!" RP at 63. He then went to Ms. Williams' bedroom window, which was closed but notcompletely secure. He said in a 2No. 32154-1-111 State v. Newton "drunken" voice that "[h]ewanted [her] to open the window because

... God and he had been talking and

... [she] could walk again." RP at64. She noticed his face was "[n]ot normal,

... not right." RP at 103. She initially refused to open thewindowfor him. Ms. Williams' and Ms. Cooper's testimony diverged from the police reports. Ms. Williams related no one refused her son entry at the front door. Likewise, Ms. Cooper related she did notdo so. Police contradicted these assertions, testifying she told them otherwise upon interview. More importantly, Ms. Williams said she refused to open the windowfor her son solely because shewas in bed and could not reach it. The State asked Ms. Williams on direct examination, "So did [Mr. Newton] open the window?" RP at 66. She answered, "I let him knowto open the window ifhe wanted to come in because Icouldn't getout ofbed to dothat." RP at 66. She later reiterated how she told him "he could come in through my bedroom window

... [i]f he could open it," RP at 84, "he could open the window [and]

... come in my room." RP at 99. On crossexamination, she elaborated, "I had more or less invited him in to stop him from being outthere, and being loud and bothering people, waking people. Itwas early in the morning." RP at 100. Thus, she claimed she consented to appease him. Ms. Williams claimed she initiallytold this to police, buttheirtestimony contradicted herassertion. According to Ms. Williams, once inside the window, Mr. Newton told her she could walk. She asked him to help herto the restroom by following normal procedures. But "[h]e was convinced that [she] could walk." RP at 69. Insistentand all the while repeating God said she could walk, Mr. Newton placed his arms around Ms. Williams and tried lifting herto herfeet so she could walk. After a few attempts, they both fell to 

### 3No. 32154-1-111 State v. Newton the ground. The incident accidentallytore her nightgown, shattered her drinking glass, and knocked over hertelevision and sometrinkets. Ms. Williams yelled for help. Mr. Newton repeatedly tried lifting her butwas unsuccessful because she is a self-described "big woman" or "big lady." RP at72, 88, 104. Agitated and wanting to get his attention, she claims she hit and kicked him whiletelling him to stop and get help. He did not listen. Eventually, Mr. Newton helped Ms. Williams to a feeble standing position, clinging tothe doorframe. Afraid offalling again, Ms. Williams asked herson to help her

maneuver into herwheelchair. He did not comply with her request, instead standing still and insisting, "Mama, you can walk. God told me you can walk." RP at76. Ms. Cooper responded to the screaming and saw Ms. Williams clinging to the wall. She returned to her bedroom and called 911 emergency response, staying there during the entire phone call because she was afraid of Mr. Newton's unstable behavior. Neighbor David Price saw Mr. Newton run tothe front door and bang and kick it while hollering for Ms. Williamsto open it. Mr. Price soon heard a crash and Ms. Williams screaming to Mr. Newton, "Stop, let me go." RP at 393. Atthe window, Mr. Price saw Mr. Newton "wrestling" with Ms. Williams, "trying to make herstand on herfeet." RP at 395. Because ofherdisability, his efforts had the result of"picking her up and dropping her, picking her up and dropping her." RP at 395. While doing so, Mr. Newton was telling Ms. Williams to walk, yelling loudly, "Bythe blood ofJesus you can walk, mama." RP at 395. Mr. Price testified, "he was having some kind ofepisode, or hewasn't really with it." RP at 396. All the while, Ms. Williams was screaming to Mr. Newton, "Let me go," "Stop. Stop. You're hurting me. You're hurting me." RP at 396,403. But he kept 

### 4No. 32154-1-111 State v. Newton insisting God had told him she could walk. Neighbor Frank Givensjoined Mr. Price at the scene. He saw and heard much the same as Mr. Price, and dialed 911. Police arrived and twice ordered Mr. Newton to release Ms. Williams but, given his mental state, he did not comply. Officer Robert Hannitydeployed an electroshock weapon against him and, aftera struggle, soon handcuffed him with the help ofofficers TravisWaddell and Eric Chell. Throughoutthis encounter Mr. Newton was screaming, "Mom, mom, you don't need you [sic] wheelchair. You don't need your chair. You don't need it anymore. You don't need yourwheelchair, mom." RP at 291. Ms. Williams was crying and nearly hysterical butwas not injured. Officer Hannity reported Mr. Newton "opened thatwindow and unlawfully entered her apartment by climbing in the window." RP at 308. But Officer Hannity admitted he supplied the word "unlawfully." While Officer Hannity reported Mr. Newton had snatched Ms. Williams outof herwheelchair by her neck, he found no sign ofstrangling. Mr. Newton did nottestify attrial. Atthe close ofthe State's evidence, he moved to dismiss the first degree burglary charge for insufficient evidence. Hefocused his challenge on the elementof intentto commit a crime without contesting the element of entering or remaining unlawfully in a building. Mr. Newton explained neither his belligerence northe eventual assaultive touching and property damage proves he had formed the required intentto commit a crime atthe time he opened and climbed through the window, orwhen he remained in Ms. Williams' bedroom. The trial court denied his motion withoutexplanation. Then, over his repeated objection, the court gavethe pattern inference of intentjury instruction, declaring, 

### 5No. 32154-1-111 State v. Newton A person who enters or remains unlawfully in a building may be inferred to have acted with intentto commit a crime againsta person or property therein. This inference is not binding upon you and it is foryou to determinewhatweight, ifany, such inference is to be given. Clerk's Papers (CP) at29; accord11AWASHINGTON PRACTICE: WASHINGTON PATIERN JURY INSTRUCTIONS: CRIMINAL (WPIC) 60.05, at 15 (3d ed. 2008); see also RCW 9A52.040. 1 Again, Mr. Newton explained the State did not show his alleged intentto commit a crime flowed more likelythan notfrom entering or remaining unlawfully in Ms. Williams' bedroom. The court reasoned the inference's permissive nature eliminated his concerns, apparentlyfeeling unbound by State v. Sandoval, 123Wn. App. 1, 94 P.3d 323 (1994), and thejudicial opinions it cites. In closing and rebuttal arguments, the State argued it had proved the elementof intentto commit a crime by showing Mr. Newton intentionally assaulted Ms. Williams and caused property damage. Further, the State extensively argued witness credibility without objection. Over pages ofthe record, the Statethematically argued about lies, lying, and liars in a mannerwe thinkwas improper, but which does not affectthe dispositive evidence insufficiency.2

1 Additionally, thetrial court gave the pattern voluntary intoxicationjury instruction, declaring, "No act committed by a person while in a state ofvoluntary intoxication is less criminal by reason ofthat condition. However, evidence of intoxication may be considered in determining whetherthe defendant acted intentionally or knowingly." CP at 30; accord 11 WPIC 18.10, at 282; see also RCW 9A16.090. 2 Ourdecision to reverse Mr. Newton's burglary conviction and dismissthe burglary charge would limit our prosecutorial misconduct and cumulative error analyses to his resisting arrest conviction. But any errors, considered individually or cumulatively, are not substantially likely to affectthejury'sverdict on the resisting arrest charge because they concern his burglary conviction solely and ample evidence supports his resisting arrest conviction. Therefore, we would conclude he received a fair trial. 

### 6No. 32154-1-111 State v. Newton Thejuryfound Mr. Newton guilty as charged. He appealed. ANALYSIS The dispositive issue is whethersufficient evidence supports Mr. Newton's first degree burglary conviction. He contends the Statefailed to prove he entered or remained unlawfully in Ms. Williams' bedroom with intentto commit a crime. The State must prove all essential elements ofa charged crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068,25 L. Ed. 2d 368 (1970). And, doublejeopardy principles prohibitthe Statefrom trying a criminal defendanta second time if it failed to muster sufficient evidencethefirsttime. Burks v. UnitedStates, 437 U.S. 1, 11, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978). Evidence is sufficientto support a guiltyfinding if'''afterviewing the evidence in the light mostfavorable tothe prosecution, any rational trier offact could have found the essential elements ofthe crime beyond a reasonable doubt.'" State v. Green, 94 Wn.2d 216,221,616 P.2d 628 (1980) (emphasis omitted) (quoting Jackson v. Virginia, 443 U.S. 307,319,99 S. Ct. 2781,61 L. Ed. 2d 560 (1979)). An evidence sufficiency challenge "admits thetruth ofthe State's evidence and all inferences that reasonably

can be drawn therefrom." State v. Salinas, 119 Wn.2d 192,201,829 P.2d 1068 (1992). We defertothejury's assessment ofconflicting testimony, witness credibility, and evidence weight. State v. Carver, 113 Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d 306 (1989). The essential elements offirst degree burglary include "enter[ing] or remain[ing] unlawfully in a building" "with intentto commit a crime against a person or property 

### 7No. 32154-1-111 State v. Newton therein." RCW 9A.52.020(1)(b). A person enters or remains unlawfully in a building "when he or she is notthen licensed, invited, or otherwise privileged to so enter or remain." RCW 9A.52.010(5). A person acts with intentto commit a crime "when he or she acts with the objective or purpose to accomplish a result which constitutes a crime." RCW 9A.08.010(1)(a). Generally, inferences are disfavored in criminal law. State v. Cantu, 156Wn.2d 819, 826,132 P.3d 725 (2006). Ajury may, however, inferthe defendant's specific criminal intentfrom his or her conduct if it is not "'patently equivocal'" and instead '''plainly indicates such intent as a matter of logical probability.'" State v. Bergeron, 105Wn.2d 1,20,711 P.2d 1000 (1985) (quoting State v. Bergeron, 38 Wn. App. 416, 419, 685 P.2d 648 (1984),aff'd, 105Wn.2d 1»; see State v. Lewis, 69Wn.2d 120, 124,417 P.2d 618 (1966). Mr. Newton argues the State did not prove the element ofintentto commit a crime. We agree. While a rational jury could, viewing the evidence in the light most favorable to the State, find he entered or remained unlawfully in Ms. Williams' bedroom beyond a reasonable doubt, no evidence shows his intentwas anything otherthan to show her she could walk. Neither his belligerence northe eventual assaultive touching and property damage proves he had formed the required intent to commit a crime atthe time he opened and climbed through thewindow, or when he remained in her bedroom. No evidence shows he entered or remained unlawfully in her bedroom with the objective

or purpose to accomplish a result constituting a crime. Thejury could not infer his specific criminal intentfrom his conduct because it does not plainly indicate such intent

as a matter oflogical probability. A rationaljury could not, viewing the evidence in the 

### 8No. 32154-1-111 State v. Newton light mostfavorable tothe State, find the element of intentto commit a crime beyond a reasonable doubt. Cf. State v. Woods, 63Wn. App. 588, 591-92, 821 P.2d 1235 (1991). Thus, we conclude insufficient evidence supports Mr. Newton'sfirst degree burglary conviction. Accordingly, we reverse his burglary conviction and remand to dismiss that charge. ConSidering our holding, we acknowledge Mr. Newton's interrelated concern regarding the permissive inference instruction to stress the due process risks ofgiving it. In a burglary prosecution, this instruction allows thejuryto inferthe defendant's alleged intentto commit a crimefrom his or heract ofentering or remaining unlawfully in a building. SeeWPIC 60.05, at 15; see also RCW 9A.52.040. Thetrial court may, with caution, give this instruction ifthe State shows the defendant's alleged intentflows

more likelythan notfrom his or heract, and the inference is notthe sole evidence of intent. State v. Brunson, 128Wn.2d 98, 107-12,905 P.2d 346 (1995); WPIC 60.05 note

on use 

### &cmt. at 15; see State v. Drum, 168 Wn.2d 23,36,225 P.3d 237 (2010); State

v. Deal, 128Wn.2d 693, 700, 911 P.2d 996 (1996); State v. Jackson, 112 Wn.2d 867, 875,774 P.2d 1211 (1989); see also CountyCourt v. Allen, 442 U.S. 140, 165-67,99 S. Ct. 2213, 60 LEd. 2d 777 (1979). Where, as here, the inference is the sole evidence of intent, the State must showthe defendant's alleged intentflows beyond a reasonable doubtfrom his or heract. Brunson, 128Wn.2d at 107, 109, 110-11; WPIC 60.05 note

on use & cmt. at 15; see Drum, 168Wn.2d at 35-36; Deal, 128Wn.2d at700 & n.4; Jackson, 112Wn.2d at 875; see alsoAllen, 442 U.S. at 166-67.



### 9No. 32154-1-111 State v. Newton In Sandoval, 123Wn. App. 1, the trial court erred by giving the inference ofintent instruction. While intoxicated by alcohol, the defendant kicked open the doorofa stranger's residence, apparently mistaking it for his own. Id. at3,5. The occupant confronted the defendant inside. Id. Surprised, the defendant shoved the occupant. Id. The Sandovalcourt concluded "there is no fact, alone or in conjunction with others, from which [the defendant's alleged] intentto commit a crime more likelythan not could flow." Id. at 5. The State did not show his alleged intentto commit a crime flowed more likely than notfrom his act ofentering or remaining unlawfully in a stranger's residence. Id. Mr. Newton's case is somewhat similarto Sandoval. While underthe influence of PCP, he opened and climbed through the windowto Ms. Williams' bedroom without guise. He tried to get hertowalk because he believed God had answered his prayers and enabled herto do so. "He was convinced that [she] could walk." RP at 69. He committed the assaultive touching solely in his surprised attemptto show hershe could walk. He did not express animustowards her. He did nottryto sneak in orflee from her bedroom, was notwearing clothes or carrying tools associated with burglary crimes, and made no efforttotake or consciously destroy property. Nofact exists, alone or in conjunction with others, from which his alleged intentto commit a crime could flow beyond a reasonable doubt. The State did not show his alleged intentto commit a crime flowed beyond a reasonable doubtfrom his act ofentering or remaining unlawfully in her bedroom. Thetrial court erred by giving the inference of intent instruction. Because Mr. Newton's evidence sufficiency challenge is dispositive, we do not address his remaining contentions. 

### 10No. 32154-1-111 State v. Newton Affirmed in part. Reversed and remanded in part. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but itwill be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

# 2;~~>er Siddoway, C.J. Lawrence-Berrey. 

### J. \

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