FILED OMT OF 

### APPEALS 

### 011VIsjon 11 2014 IN THE COURT OF APPEALS OF THE STATE OF WASHING DIVISION II STATE OF WASHINGTON, Respondent,

i TRAVIS WADE NEWSOME, in No. 43813- 5- 11

UNPUBLISHED OPINION 22 AM 9: { 8 Xylks M TO

PENOYAR, J. — Travis Wade Newsome appeals his conviction of residential burglary. Newsome previously appealed his first degree burglary conviction. We reversed the .jury's
verdict and remanded for further proceedings. On remand, the trial court granted the State' s
motion to convict and sentence Newsome for residential burglary. Newsome argues that the 

### court erred by granting the State's motion and convicting him of residential burglary because
residential burglary is not a lesser included offense of first degree burglary. The State concedes error. We accept the State' s concession. 

### Newsome's conviction ofresidential burglary is reversed, andthis matter is remanded for 

### conviction and sentencing for a lesser included offense of the greater offense, first degree burglary, or retrial on the alternate charge of residential burglary.43813 -5 -II FACTS At his jury trial, Newsome pleaded not guilty to - first degree burglary. The trial court 

### instructed thejury to convict Newsome on first degree burglary ifit found beyond a reasonable doubt that Newsome ( 1) entered or remained unlawfully in a building' ( 2) with the intent to commit a crime against aperson orpropertytherein (3) while being armed with a deadlyweapon 

### when entering, remaining in, or fleeing from the building and (4) any ofthese acts occurred in the State of Washington. 

### Ifthejury did not convict Newsome offirst degree burglary,thejury

was instructed to make findings on the alternate charge of residential burglary. After 

### deliberating, thejury convicted Newsome offirst degree burglary and did not fill in the verdict form forthe residential burglary charge.

Newsome appealed his conviction of first degree burglary. This court reversed the first degree burglary conviction and remanded for further proceedings. In its opinion, this court 

### recognized that the State might initiate further proceedings, including either a retrial on the 

### alternate charge ofresidential burglary or a motion to convict and sentence on a lesserincluded
offense.

On remand, the State asked the trial court to convict and sentence Newsome for 

### residential burglary, claiming that in this case residential burglary is alesser included offense of Newsome's first degree burglary conviction because the jury was instructed on residential 

### burglary and the facts showthe structure Newsome entered was both a building and adwelling. The trial court granted the State's motion and convicted Newsome of residential burglary, Jury instruction defined "[ b] uilding" as, " in addition to its ordinary meaning, any dwelling, 

### fenced area, vehicle, railway car, or cargo container. Building also includes any other structure 

### used mainlyforlodging ofpersons,forcarrying onbusinessthereinorfortheuse, saleordeposit of goods." Clerk' s Papers ( CP) at 56. 243813 -5 -II



### reasoning that a new trial on the charge of residential burglary was not necessary because the facts were so clear in this case thatthejury had to have found the victim lived in the building. Newsome appeals, pointing out that residential burglary requires proof of entry into a dwelling and that first degree burglary, as charged here, does not. Thus Newsome argues his current conviction should be reversed because it was not for a lesser included offense of his original conviction. ANALYSIS 

### On remand, a court may convictand sentence a defendantto an offensewithout holding a new trial if the record clearly shows the jury made explicit findings as to all of the necessary
elements of a lesser included crime. In re Pers. Restraint ofHeidari, 174 Wn.2d 288, 292, 274 P. 3d 366 ( 2012) ( quoting State v. Green, 94 Wn.2d 216, 234, 616 P. 2d 628 ( 1980)). A lesser 

### offense is only included inagreateroffensewhen each ofthe elements ofthe lesseroffense is an element of the greater offense, the legal prong, and the evidence supports an inference that the defendant committed the lesser crime, the factual prong. State v. Stevens, 158 Wn.2d 304, 310, 143 P.3d 817 ( 2006) ( citing State v. Gamble, 154 Wn.2d 457, 462 - 63, 114 P. 3d 646 (2005)). For 

### residential burglaryto be a lesser included offense offirst degree burglary in any particular case, the legal and factual prongs ofa lesser included offense test must be satisfied. 

### The legal prong is not met in this case because the jury instruction on first degree burglary did not require the jury to find every legal element of residential burglary. Whether a building constitutes a dwelling is an element that the jury must determine. State v. McDonald, 123 Wn.App. 85, 91, 96 P. 3d 468 ( 2004). Thejury found each element offirst degree burglary 

### and consistent with its instructions, thejury did not make any findings on residential burglary.
343813- 5- 11

Thus, thejury did not decide whether the building Newsome entered was a dwelling.2 The trial 

### court erred by convicting and sentencing Newsome for residential burglary on remand because 

### thejury did notfind beyond areasonable doubtNewsome entered adwelling. Newsome's conviction ofresidential burglary is reversed, and this matter is remanded for 

### conviction and sentencing for a lesser included offense of the greater offense, first degree burglary, or retrial onthe alternate charge ofresidential burglary. 

### A majority ofthe panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

We concur:

2 Jury instruction defined "[ 

### d]welling" as " any building orstructure which is used or ordinarily used by a person for lodging." CP at 57. 4