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## 20I3OCT-7 AMS^G

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OFWASHINGTON, Respondent,

v. ERIKTHOMAS SCHUMANN, Appellant. Appelwick, J. — This appeal arises 

### burglary. His defense at trial was that he No. 68853-7-1 DIVISION ONE UNPUBLISHED OPINION
FILED: October7, 2013

rom Schumann's conviction for residential 

### easonably though mistakenly believed the house was abandoned. His attorney did not request jury instructions on the 

### abandonment defense. Schumann argues this constituted ineffective assistance of counsel. We affirm. FACTS 

### On the morning ofFebruary 3, 2012, Michael Brunson heard a loud noise and discovered someone had broken a window in an exterior door to the basement of his Shoreline home. Brunson reported the break-in. However, he had to leave on an 

### urgent errand before he could board up the window, so he locked the basement door and moved anemptyfilecabinetin front of it.No. 68853-7-1/2


### Later thatevening, police responded to a call from Brunsonthathe heard a voice 

### coming from his basement. The two responding officers found Erik Schumann and a female suspect inside the basement. Brunson did not know either individual. One 

### officer noticed that Schumann was wearing gloves and had a setof pliers in the utility pocket of his pants. Upon arrest, the officers searched Schumann and found he had several knives, a pry bar, flashlight, pliers, and a handsaw. One ofthe knives was later 

### confirmed to be stolen from the basement. The State charged Schumann with one countofresidential burglary. Fromjail, Schumann called a friend to say, "But hey urn yeah Igot popped for thatfuckin' Meridian house." Thefriend asked, "Itwas empty right?" and then asked "Is there people living there?" Schumann responded, "Yeah. There's people livin' there. Tell DiaperSocks notto hit it up. That's crazy." At trial, Schumann relied on the defense that he reasonably believed the house
was abandoned. Brunson's property was so overgrown that his house could not be
seen from the street. The home looked cluttered and in disrepair. Brunson acknowledged that his property is more densely wooded than neighboring properties, and he usually only turned on one light at a time inthe house. However, Schumann's defense counsel did not requestanyjury instructions on the abandonmentdefense. Thejury returned a verdictof guilty. Schumann appeals. DISCUSSION Schumann argues that he was entitled to jury instructions on his defense thathe 

### reasonably believed the house was abandoned. He contends that by relying on thisNo. 68853-7-1/3


### defense without proposing instructions to inform the jury of supporting law, hiscounsel performeddeficiently and prejudiceresulted. 

### To establish ineffective assistance based on counsel's failure to request a jury instruction, the defendant must showthathewas entitled to the instruction, counsel was 

### deficient infailing to request it, and failure to request the instruction caused prejudice. Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); 

### State v. Johnston. 143 Wn. App. 1, 21, 177 P.3d 1127 (2007). Where counsel has no strategic reasonfor failing to requestjury instructions on a defensetheory and prejudice results, Washington courts have held counsel to be ineffective. See, e.g.. State v. Powell. 150 Wn. App. 139, 155, 206 P.3d 703 (2009); State v. Kruger. 116 Wn. App. 685, 693-94, 67 P.3d 1147 (2003). A person is guilty of residential burglary if, "with intent to commit a crime against
a person orpropertytherein, the person enters orremains unlawfully in a dwelling other than a vehicle." RCW 9A.52.025(1). A person is guilty of first degree criminal trespass "ifhe or she knowingly enters or remains unlawfully in a building." RCW 9A.52.070(1). 

### There is no statutory defense to residential burglary. See chapter 9A.52 RCW. However, RCW 9A.52.090 provides several defenses to criminaltrespass: 

### Inany prosecution under RCW 9A.52.070 and 9A.52.080, it is a defense that: (1) A building involved in an offense under RCW9A.52.070was abandoned: or 

### (2) The premises were at the time open to members ofthe public and the actor complied with all lawful conditions imposed on access to or remaining inthe premises; orNo. 68853-7-1/4 

### (3) The actor reasonably believed that the owner of the premises, or other person empowered to license access thereto, would have licensed him or herto enteror remain. (Emphasis added.) 

### This case turns on whether Schumann was entitled to a jury instruction on abandonmentas a defenseto residentialburglary. See Statev. Cienfuegos. 144 Wn.2d 

### 222, 227, 25 P.3d 1011 (2001). Division Two and Division Three of this court currently disagree as to whether abandonment is a defense to burglary. See, e.g.. State v. Jensen. 149 Wn. App. 393, 401, 203 P.3d 393 (2009); Statev. J.P., 130 Wn. App. 887, 895, 125 P.3d 215 (2005). 

### InJ.P., the defendant was convicted ofresidential burglary after he was caught spray painting walls and windows inside a vacant, repossessed home being prepared for sale. 130 Wn. App. at 890-91. On appeal, Division Three considered whetherthe criminal trespass abandonment defense also applies to residential burglary. jp\ at 894. The court acknowledged that RCW 9A.52.090(1) is limited to criminal trespass by its terms. kLat 894. However, the Washington Supreme Court held in City ofBremerton v. Widell that the statutory defenses to criminal trespass negate the unlawful presence 

### element.1 146Wn.2d 561, 570, 51 P.3d 733 (2002). Burglary andcriminal trespass share the same unlawful entry or presence element. J.P.. 130 Wn. App. at 895. Therefore, Division Three concluded, the unlawful presence element of residential burglary mustbe equally negated by abandonment. |a\


### 1 Once a defendant has offered some evidence that his or her entry was permissible under RCW9A.52.090, due process requires thatthe State bearthe burden of proving beyond a reasonable doubt that the defendant's entry was unlawful. Widell, 146 Wn.2d at 570; State v. Deer. 175 Wn.2d 725, 734, 287 P.3d 539 (2012), certdenied, 133 s. Ct. 991, 184 L Ed. 2d 770 (2013).No. 68853-7-1/5
Division Two disagreed. In Jensen, the defendant was convicted of second 

### degree burglary for entering a restaurant that appeared abandoned, but was not. 149 Wn. App. at 397. Division Two recognized that "J.P.'s holding has a measure of logical appeal, because burglary and criminal trespass share the same unlawful entry 

### element." Id at400. However, the courtconcluded, the plain language ofthe statutory abandonment defense applies only to prosecutions for first degree criminal trespass. Id. at 400-01. Therefore, the court held that the abandonment defense of RCW 9A.52.090(1) is notavailablefor second degree burglary. Id at401. However, we need not decide here whether abandonment is a negating defense to residential burglary, because Schumann was not entitled to a jury instruction on abandonment. Though a criminal defendant is entitled to have thejury fullyinstructed
on the defense theory ofthe case, he is not entitled to an instruction that inaccurately represents the law or for which there is no evidentiary support. State v. Stalev, 123 Wn.2d 794, 803, 872 P.2d 502 (1994). In determining whether sufficient evidence supports an instruction, we view the evidence in the light most favorable to the requesting party. State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000). Schumann argues that a subjective, reasonable belief that the home was abandoned is sufficientto triggera jury instruction on the defense. Wedisagree. 

### Inconsidering Schumann's argument, we look to the broaderstatutory contextof the abandonment defense. Lake v. Woodcreek Homeowners Ass'n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010). RCW9A.52.090(3) provides a defenseto criminal trespass 

### when the defendant "reasonably believed" that the owner would have licensed him or her to enter the premises. In contrast, RCW 9A.52.090(1) makes no mention oftheNo. 68853-7-1/6


### defendant's reasonable belief that the premises were abandoned. Rather, it is only a defense that the building "was abandoned." RCW 9A.52.090(1). Inclusion of a reasonable belief defense in RCW 9A.52.090(3) implies exclusion of it in RCW 9A.52.090(1). State v. Ortega. 177 Wn.2d 116, 124, 297 P.3d 57 (2013). The statute requires abandonment in fact—reasonable belief of abandonment is not sufficient to 

### trigger RCW 9A.52.090(1).2 In practical terms, this makes sense, because it discourages individuals from entering buildings that are not in fact abandoned, even though they appearto be. J.P. supports this conclusion, as well. InJ.P.. the home was vacant after being repossessed by a bank. 130Wn. App. at 893, 896. Becausethe bank did notintend to 

### surrender the property, the home was notabandoned.3 Id Therefore, thedR court held that the unlawful entry element of residential burglary was not negated by abandonment, and affirmed J.P.'s conviction, Id If a home is not actually abandoned, then entry cannotbe lawful underthatdefensetheory. Likewise, in State v. Ponce, the court held thatjury instructions almost identical to the ones given in Schumann's case were sufficientto apprise thejury ofthe law and



### 2Cf. Powell, 150 Wn. App. at 153, 157-58 (finding ineffective assistance of counsel where attorney failed to request a jury instruction on a statutory reasonable beliefdefense to second degree rape). 

### 3"Abandoned" is notdefined by the statute. SeeRCW 9A.52.010, .090. JP. relied on the dictionary definition ofthe word "abandon": "'to cease to assertor exercise an interest, right, or title to especially] with the intent of never again resuming or 

### reasserting it'and 'to give up
... by leaving, withdrawing, ceasing to inhabit, to keep, or to operate often because unable to withstand threatening dangers or encroachments.'" 130 Wn. App. at 895-96 (alterations in original) (quoting Webster's Third New International Dictionary 2 (1993)).No. 68853-7-1/7 

### enable Ponce to argue histheory ofpermissible entry.4 166Wn. App. 409, 420, 269 P.3d 408 (2012). A specific instruction need not be given when a more general instruction adequatelyexplainsthe lawand enablesthe partiesto arguetheirtheories of the case. Id at419. 

### Schumann nevertheless argues that reasonable belief ofabandonment negates the mens rea required for burglary. However, the statutory abandonment defense negates the unlawful presence element. Widell. 146 Wn.2d at 570. The definition of 

### unlawful presence does not include a requisite mens rea: "Aperson 'enters or remains unlawfully' in or upon premises when he or she is not then licensed, invited, or otherwise privileged to so enter or remain." 9A.52.010(5). Rather, the mens rea for burglary is the "intent to commit a crime against a person or property," not the fact of unlawful entry. RCW 9A.52.020(1). Reasonable beliefof abandonment may go to the defendant's intentto commit a crime. For instance, the defendant might have believed the property hetookfrom the premises was abandoned, therefore itbelonged to no one. However, ifthe premises are not infact abandoned, then the defendant is notentitled to a jury instruction on abandonmentunder RCW9A.52.090(1), because entry is unlawful. Even viewing evidence in the light most favorable to Schumann, testimony conclusively established that the home here was not abandoned. Brunson lived there


### 4 In Ponce. Division Three clarified that J.P. did not hold that a jury must be instructed that the statutory defenses to criminal trespass are also defenses to residential burglary. 166 Wn. App. at 417. Rather, the JP. "court did no more than recognize that ifproof of abandonment of property would negate the unlawful entry element ofcriminal trespass for due process/burden of proofpurposes, as determined in Widell, then it must negate the identical unlawful entry element for residential 

### burglary." Jd at418. The Ponce courtexplainedthatthe defenses to criminaltrespass have "nobearing atall on a court's decisionto instructon them in a burglarycase." IdNo. 68853-7-1/8


### for almostall hislife. Infact, he had notspentone night awayfrom home since 2009. Therefore, Schumann's unlawful entry was not negated by RCW9A.52.090(1). Under thesefacts, Schumann was not entitled to a jury instruction on abandonment. Because 

### Schumannwas not entitled tothejury instruction, hiscounsel was not ineffective. We affirm.

WE CONCUR: 

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