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UNPUBLISHED OPINION

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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 of residential 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 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 the jury to convict Newsome on first degree burglary if it found beyond a reasonable

doubt that Newsome ( 1) entered or remained unlawfully in a building' ( 2) with the intent to

commit a crime against a person or property therein ( 3) while being armed with a deadly weapon

when entering, remaining in, or fleeing from the building and ( 4) any of these acts occurred in

the State of Washington. If the jury did not convict Newsome of first degree burglary, the jury

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

deliberating, the jury convicted Newsome of first degree burglary and did not fill in the verdict

form for the 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 of residential burglary or a motion to convict and sentence on a lesser included

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 a lesser included offense of

Newsome' s first degree burglary conviction because the jury was instructed on residential

burglary and the facts show the structure Newsome entered was both a building and a dwelling. 

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 mainly for lodging of persons, for carrying on business therein or for the use, sale or deposit

of goods." Clerk' s Papers ( CP) at 56. 

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43813 -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 that the jury 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 convict and sentence a defendant to an offense without 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 in a greater offense when each of the elements of the lesser offense 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 burglary to be a lesser included offense of first degree burglary in any particular case, 

the legal and factual prongs of a 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). The jury found each element of first degree burglary

and consistent with its instructions, the jury did not make any findings on residential burglary. 

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Thus, the jury 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

the jury did not find beyond a reasonable doubt Newsome entered a dwelling. 

Newsome' s conviction of residential 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 on the alternate charge of residential burglary. 

A majority of the 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: 

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Jury instruction defined "[ d]welling" as " any building or structure which is used or ordinarily

used by a person for lodging." CP at 57. 

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