IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 50154-6-II

Respondent,

v. UNPUBLISHED OPINION

JOEY LEE McMILLAN,

Appellant.

MAXA, C.J. – Joey McMillan appeals his convictions of second degree burglary and third 

degree malicious mischief. We hold that the trial court did not err in declining to give two jury 

instructions that McMillan proposed: (1) an instruction that modified the statutory definition of 

“enters or remains unlawfully” to add a knowledge requirement, and (2) a lesser included offense 

instruction for first degree criminal trespass. Accordingly, we affirm McMillan’s convictions.

FACTS

On Saturday, June 25, 2016, Noel Vas went into the Washington State Auditor’s Office 

in Tumwater, where he worked. He noticed some ceiling tiles and wires dangling near the wall 

and saw McMillan in a co-worker’s cubicle on his hands and knees. Vas called 911 and reported 

that there was an intruder in the building.

Tumwater Police Officer Tye Hollinger located McMillan inside the building. Hollinger

arrested McMillan and in a search incident to arrest discovered what appeared to be a used 

hypodermic syringe. Hollinger spoke with McMillan, who explained that earlier that day he had 

purchased heroin and methamphetamine and used both at the same time. He admitted entering 

Filed

Washington State

Court of Appeals

Division Two

August 7, 2018
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the building through a back door that had not been properly secured, and he admitted causing 

damage to the facility. McMillan explained that he went into the building because people were 

hiding from him.

Hollinger believed that McMillan was under the influence of methamphetamine. But 

Hollinger noted that McMillan was able to speak coherently and cooperatively, that he had no 

difficulties speaking with McMillan, and that McMillan appeared to have no problems 

remembering what had happened.

Hollinger identified damage throughout the IT department. In the breakroom, chairs 

were overturned and torn and the refrigerator was pulled out. In the hallway, a knife was stuck 

in a door jamb. And near Vas’s office, ceiling tiles were removed and electrical and network 

wires were cut.

The State charged McMillan with second degree burglary and second degree malicious 

mischief.

At trial, McMillan provided expert testimony from a psychologist, Michael Stanfill, 

Ph.D. Stanfill testified that because McMillan was under the influence of drugs, he lacked the 

capacity to form intent as it related to the burglary charge. Specifically, he stated that McMillan 

did not have the capacity to intend to unlawfully enter a building or intend to commit a crime

therein. Stanfill described McMillan as suffering from delusions that people were hiding from 

him, following or chasing him, and spying on him.

However, Stanfill testified that McMillan did have the capacity to form an intent 

regarding the malicious mischief charge. According to Stanfill, McMillan understood that he 

was causing damage to property.
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McMillan proposed an instruction that modified the statutory definition of “enters or 

remains unlawfully in or upon premises” in the definition of burglary to add a requirement that a 

person must be aware that he or she had entered or remained unlawfully. The State argued that 

it was only required to prove intent to commit a crime within the building, not intent to enter or 

remain unlawfully. The trial court rejected the proposed instruction, finding that the law did not 

support it. 

McMillan also proposed a jury instruction on first degree criminal trespass as a lesser 

included offense of second degree burglary. He based this request on testimony from Stanfill,

who stated that McMillan told him that he did not realize he was unlawfully in the building until 

after he had caused damage inside. McMillan told Stanfill that he came to this realization when 

Vas confronted him. McMillan argued that from the time of that realization until the police 

arrested him, he was committing only the crime of criminal trespass. The trial court rejected the

proposed lesser included offense instruction.

The jury found McMillan guilty of second degree burglary, not guilty of second degree 

malicious mischief, and guilty of the lesser offense of third degree malicious mischief. 

McMillan appeals his convictions.

ANALYSIS

A. BURGLARY INSTRUCTION

McMillan argues that the court erred in declining to give his proposed instruction that 

modified the statutory definition of “enters or remains unlawfully” to add a knowledge

requirement. We disagree.
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1. Legal Principles

In general, we review a trial court’s choice of jury instructions for an abuse of discretion. 

State v. Hathaway, 161 Wn. App. 634, 647, 251 P.3d 253 (2011). However, we review de novo 

the refusal to give an instruction based on a ruling of law. State v. Cordero, 170 Wn. App. 351, 

369, 284 P.3d 773 (2012).

Jury instructions are appropriate if they allow a defendant to argue his or her theories of 

the case, are not misleading, and when read as a whole properly state the applicable law. State v. 

Aguirre, 168 Wn.2d 350, 363-64, 229 P.3d 669 (2010). It is not error to refuse to give a specific 

instruction when a more general instruction adequately explains the law and allows each party to 

argue its theories of the case. Hathaway, 161 Wn. App. at 647.

2. Analysis

Under RCW 9A.52.030(1), a person is guilty of second degree burglary when he or she 

“enters or remains unlawfully” in a building with the intent to commit a crime therein. RCW 

9A.52.010(2) states, “A person ‘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.” The trial court 

gave a jury instruction that was virtually identical to RCW 9A.52.010(2). The same language is 

contained in Washington Pattern Instruction Criminal 65.02.1 

McMillan proposed that additional language be inserted at the end of the standard 

instruction: “and is aware of the fact that he or she is not then licensed, invited, or otherwise 

privileged to so enter or remain.” Clerk’s Papers at 66 (emphasis added). He claims that a 

 

1

11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 65.02, at 

39 (4th ed. 2016).
No. 50154-6-II

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knowledge component must be implied in the burglary statute. However, neither RCW 

9A.52.030(1) nor RCW 9A.52.010(2) support this argument. RCW 9A.52.030(1) does not state 

that a person must “knowingly” enter or remain in a building unlawfully in order to commit 

burglary, just that he or she enter or remain unlawfully. The definition of “enters or remains 

unlawfully” in RCW 9A.52.010(2) does not contain a knowledge requirement. And the cases 

McMillan cites do not support such a requirement. See State v. Allen, 127 Wn. App. 125, 137, 

110 P.3d 849 (2005) (comparing intent to commit a crime before and after entering building 

lawfully and unlawfully).

Further, the legislature imposed an express knowledge requirement for criminal trespass, 

which occurs when a defendant “knowingly enters or remains unlawfully in a building.” RCW 

9A.52.070(1) (emphasis added). The absence of the same language in the burglary statute shows 

that the legislature did not intend to impose such a requirement for burglary. See State v. 

Slattum, 173 Wn. App. 640, 655, 295 P.3d 788, 796 (2013) (stating that when the legislature 

omits language from a statute, the court will not read the omitted language into the statute).

RCW 9A.52.010(2) states the applicable definition of “enters or remains unlawfully.”

We hold that the trial court did not err by giving an instruction that used the statutory language. 

See State v. Harris, 164 Wn. App. 377, 387, 263 P.3d 1276 (2011) (stating that a trial court 

should instruct based on the statutory language when the statute expresses the law governing the 

case).

B. LESSER INCLUDED OFFENSE INSTRUCTION – CRIMINAL TRESPASS

McMillan argues that the trial court erred in declining to give a lesser included offense 

instruction on first degree criminal trespass. We disagree.
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1. Legal Principles

A defendant is entitled to a lesser included instruction if “(1) each element of the lesser 

offense is a necessary element of the offense charged (legal prong) and (2) the evidence, viewed 

most favorably to the defendant, supports an inference that only the lesser crime was committed 

(factual prong).” State v. Hahn, 174 Wn.2d 126, 129, 271 P.3d 892 (2012) (citing State v. 

Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978)).

A lesser included offense instruction must be given if requested when the evidence would 

allow the jury to find the defendant guilty of the lesser offense and acquit him or her of the 

greater offense. State v. Fernandez-Medina, 141 Wn.2d 448, 456, 6 P.3d 1150 (2000). 

However, “the evidence must affirmatively establish the defendant’s theory of the case – it is not 

enough that the jury might disbelieve the evidence pointing to guilt.” Id.

As noted above, the elements of second degree burglary are entering or remaining 

unlawfully in a building with the intent to commit a crime therein. RCW 9A.52.030(1). First 

degree criminal trespass occurs when the defendant “knowingly enters or remains unlawfully in 

a building.” RCW 9A.52.070(1).

2. Factual Prong Analysis

Here, the parties focus only on the factual prong of the test for giving a lesser included 

offense instruction. Therefore, we do not address the legal prong: whether first degree criminal 

trespass is a lesser included offense of second degree burglary.2

 

2 Several cases hold that first degree criminal trespass is a lesser included offense of second 

degree burglary. E.g., State v. Olson, 182 Wn. App. 362, 375, 329 P.3d 121 (2014). However, 

as discussed above, a knowing unlawful entry is required for first degree criminal trespass but 

not for second degree burglary. Therefore, we question whether the legal prong is satisfied here.
No. 50154-6-II

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The issue is whether the evidence supports an inference that McMillan committed only

first degree criminal trespass. McMillan argues that the evidence supported a finding that (1) he 

did not have the mental capacity to know that he was not authorized to enter or remain in the 

building when he damaged the property inside; (2) he became aware that he was in the building 

unlawfully only after Vas confronted him, when the damage already had occurred; and (3) he 

committed criminal trespass when he remained in the building after becoming aware that he was 

in the building unlawfully. McMillan claims that these findings would have allowed the jury to 

convict him of criminal trespass but acquit him of burglary.

However, McMillan’s argument is based on his position that a person “enters or remains 

unlawfully” in a building only if the person is aware that he or she is acting unlawfully. As 

discussed above, we reject that position. Therefore, the only evidence presented to the jury was 

that McMillan entered the building unlawfully and also remained in the building unlawfully 

during the entire time he was inside. And the undisputed evidence from Stanfill was that 

McMillan had the capacity to intend to damage property inside the building. Therefore, the jury 

could not have found him guilty only of criminal trespass during the time he remained in the 

building but after he caused the damage.

We hold that the trial court did not err in denying McMillan’s request for a lesser 

included instruction.
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CONCLUSION

We affirm McMillan’s convictions.

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 in accordance with RCW 

2.06.040, it is so ordered.

MAXA, C.J.

We concur:

JOHANSON, J.

SUTTON, J.