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### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON ,

Respondent ,

v. DAVID RAY BROWN ,

Appellant

. ) ) ) ) ) ) ) ) ) No. 38749

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ORDER GRANTING MOTION TO PUBLISH

THE COURT has considered the r espondent’s motion to publish the court’s opinion of February 23, 2023 , and is of the opinion the motion to publish should be granted. Therefore, IT IS ORDERED, the motion to publish is granted. The opinion filed by the court on February 23, 2023 , shall be modified on page 1 to designate it is a published opinion and on page 10 by deletion of the following language:

A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for pu blic record pursuant to RCW 2.06.040. PANEL: Judges Fearing, Lawrence

- Berrey, Staab
FOR THE COURT:

________________________________ GEORGE B. FEARING Chief Judge FILED

APRIL 25, 2023 In the Office of the Clerk of Court WA State Court of Appeals Division IIIIN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON ,

Respondent ,

v. DAVID RAY BROWN ,

Appellant

. )

) ) ) ) ) ) ) ) No. 38749

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UNPUBLISHED OPINION

F EARING , J.

— David Brown appeals his convicti on for second degree burglary. He contends his trial counsel performed deficiently when failing to offer a lesser included offense jury instruction for second degree trespass. We reject his contention because trespass is not a lesser included offense of burglary.
FACTS This prosecution arises from the presence of David Brown, on March 23, 2020, on the business premises of Automotive Specialties , a north Spokane used car dealership. On that day, Automotive Specialties was in the process of moving its business location
two blocks hence

. FILED FEBRUAR Y 23, 2023 In the Office of the Clerk of Court WA State Court of Appeals Division IIINo. 38749

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State v. Brown

2 Lyle Click , a tow truck operator , arrived at Automotive Specialties on the morning
of March 23 to assist the dealership with moving its inventory to the new sales lot. Click
noticed a person inside a truck . The truck sat on a tennis court surrounded by a twelve

foot

- high gated fence. Automotive Specialties stored some of its car inventory inside the
fence d area

. Click blocked the outside of the gate with his truck so that the person seated
in the other truck could n ot escape the premises. The interloper inside the other truck
was David Brown. Brown owned the other truck. A trailer owned by Gregor Klante was hitched to the truck occupied by David
Brown. Klante operated a separate dealership that shared space with Automotive Specialties . Lyle Click phoned Klante, who arrived fifteen minutes later. Before Klante’s arrival, Brown barked at Click to move his truck so that he could drive the truck he occupied through the gate. Brown threatened to ram Click’s truck. Brown insisted that he owned the trailer, although Click knew otherwise. Greg Klante appeared at Automotive Specialties minutes later. Automotive Specialists detailer Gary Litzenberger arrived at the location near the same time as Klante appeared. Lit zenberger noticed the presence of a different lock on the fence than the lock regularly used by the dealership. The interloper, David Brown, insisted that he owned the business property. Litzenberger insisted that B rown open the gate. Brown ignored
Litz enberger. Litzenberger telephoned Automotive Specialties general manager John
Rostollan , who arrived five minutes later.No. 38749

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State v. Brown

3 John Rostollan, while employing colorful language, asked the intruder, David Brown, to explain his presence. Rostollan insisted tha t Brown unlock the gate. After hesitation, Brown opened the gate. Brown insisted that he owned the trailer to which he
had hooked his truck. Rostollan demanded that Brown unhook the trailer. Brown eventually conceded he did not own the trailer and rele ased the trailer from his truck. James Stewart, a Spokane Police Department detective, responded to Automotive Specialties business property. Stewart saw red paint on Brown’s hands , although the
detective discovered no paint cans within the vicinity. S omeone had spray

- painted the trailer red within the last hour because the paint still felt new. A remote control for the trailer’s winch, which had been locked in a box inside the trailer, was found in Brown’s
truck. Stewart found a crowbar in Brown’s tr uck.
PROCEDURE
The S tate of Washington charged David Brown with second degree burglary . At the close of trial, Brown did not propose any jury instruction permitting the jury to
convict him of a lesser include d offense. Nevertheless, d uring closing arg uments,
counsel for Brown argued that the State failed to pro v e beyond a reasonable doubt that Brown committed second degree burglary. Brown’s counsel asserted that Brown
committ ed second degree trespass, not second degree burglary. T he jury found David Brown guilty of s econd degree burglary.No. 38749

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State v. Brown

4 LAW AND ANALYSIS On appeal, David Brown contends his trial counsel performed ineffectively by failing to propose a jury instruction allowing the jury to convict him of second degree trespass as a lesser include d o ffense of the charged crime: second degree burglary. This
contention assumes that second degree trespass constitutes a lesser include d offense of
second degree burglary. We conclude that second degree trespass does not comprise a
lesser included offense. Therefore, trial counsel did not perform deficiently. We first review principles t hat apply to claims of ineffective assistance of counsel, before analyzing whether trespass is a lesser include d offense of burglary.
The Sixth Amendment to the United S tates Constitution and article I, section 22 of the Washington Constitution guarantee effective assistance of counsel. State v. Classen , 4 W n . App. 2d 520, 535, 422 P.3d 489 (2018). To prevail on an ineffective assistance of counsel claim, a defendant mu st prove that (1) his or her counsel performed deficiently, and (2) counsel’s deficient performance resulted in prejudice. Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) ; State v. Classen , 4 W n
. App. 2d 520, 535 (201 8)

. P erformance is deficient if it falls below an objective standard
of reasonableness. State v. Grier , 171 W n .2d 17, 33, 246 P.3d 1260 (2011) . To show
p rejudice, a defendant must demonstrate a reasonable possibility that, but for counsel’s purportedly deficient conduct, the outcome of the proceeding would have differed. State

v. Classen , 4 W n . App. 2d 520, 535 (2018).No. 38749

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State v. Brown

5 David Brown’s appeal illustrates the overlapping nature of the two elements comprising an ineffective assistance of counsel claim. If s econd degree trespass does not
constitute a lesser include d offense of second degree burglary, the trial court would not have given a lesser offense jury instruction such that Brown can show no prejudice. If trespass does not act as a lesser include d offe nse of burglary, trial counsel also did not perform ineffectively by failing to propose a jury instruction particularly since the trial
court would not have delivered the instruction

. Although the common law recognized the right to a lesser included offe nse jury instruction, a Washington statute confirms the right to the instruction. State v. Davis , 121 Wn.2d 1, 4, 846 P.2d 527 (1993), abrogated on other grounds by State v. Berlin , 133 Wn.2d 541, 947 P.2d 700 (1997). RCW 10.61.006 reads:

In all other ca ses the defendant may be found guilty of an offense the commission of which is necessarily included within that with which he or she is charged in the indictment or information.
Both the prosecution and the defense may seek a lesser included offense jury
instruction

. State v. Berlin , 133 Wn.2d 541, 548 (1997)

. Th e rule of a lesser included
offense benefits the defendant by providing a third alternative to either conviction of the offense charged or acquittal. State v. Berlin , 133 Wn.2d 541, 544

- 45 (1997 )

. The rule seeks to ensure that juries considering the case of a defendant plainly guilty of some offense do not set aside reasonable doubt in order to convict her and avoid letting her goNo. 38749

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State v. Brown

6 free. Keeble v. United States , 412 U.S. 205, 212

- 13, 93 S. Ct. 1 993, 36 L. Ed. 2d 844 (1973). Washington law applies a two

- part test, known as the Workman test, when ascertaining whether a party is entitled to a jury instruction on a lesser included offense.
State v. Workman , 90 Wn.2d 443, 447

- 48, 584 P.2d 382 (1978)

. In part one , the court
asks whether each of the lesser included offense elements also are necessary to conviction of the greater, charged offense. State v. Condon , 182 Wn .2d 307, 316 , 343
P.3d 357 (2015) ; State v. Workman , 90 W n .2d 443 , 447

- 48 (1978)

. In part two , the court asks whether the evidence presented in the case supports an inference that only the lesser offense was committed, to the exclusion of the greater, charged offense

. State v. Condon , 182 Wn .2d 307, 316 (2015). The first prong is the legal prong, and the second prong is the factual prong. State v. Berlin , 133 Wn.2d 541, 546 (1997)

. The proponent of the jury instruction must satisfy both prongs. State v. Condon , 182 Wn.2d 307, 316 (2015)

. We
rest our decision in David Brown’s appeal solely on the legal prong. We compare the crime of second degree burglary with second degree theft. RCW 9A.52.030 creates the crime of second degree burglary:

(1) A person is guilty of burglary in the second degree if, with intent to commit a crime ag ainst a person or property therein, he or she enters or remains unlawfully in a building other than a vehicle or a dwelling. Thus, t he elements of second degree burglary are: (1) entering or remaining unlawfully in

a building other than a vehicle or dwell ing , (2) with the intent to commit a crime against aNo. 38749

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State v. Brown

7 person or property therein

. State v. Brunson , 128 Wn.2d 98, 104

- 05, 905 P.2d 346 (1995). “Building, ” in the context of the criminal code , includes any “ fenced area .”
RCW 9A. 04.110(5). David Brown doe s not challenge the fenced area on Automotive Specialties lot being a building. RCW 9A.52.080 defines the crime of second degree trespass. The statute
declares: (1) A person is guilty of criminal trespass in the second degree if he or she knowingly ente rs or remains unlawfully in or upon premises of another under circumstances not constituting criminal trespass in the first degree.
The elements of second degree trespass are (1) entering or remaining unlawfully on premises of another , and (2) knowingly d oing so. The statute has an ambiguity in that the reader does not know whether the accused must know that she entered premises, that she knew the premises belonged to another, that she knew she engaged in unlawful conduct,
some combination of two of the a lternatives , or all three. In State v. Moreno , 14 W n
. App. 2d 143 , 470 P.3d 507 (2020) , aff’d , 198 Wn.2d 737, 499 P.3d 198 (2021) , this court analyzed the statute as if the accused must know that he entered the premises unlawfully. This ambiguity is unim portant to this appeal regardless how one construes the statute

. Th e comparison of RCW 9A.52.030 and 9A.52.080 reveals that second degree trespass does not consist solely of elements necessary for a conviction of second degree burglary. The defendant mu st enter the building knowingly or with knowledge that theNo. 38749

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State v. Brown

8 entry is unlawful to be guilty of trespass. The accused need not knowingly enter the premises or know that entry is unlawful to be guilty of second degree burglary. The defendant need only enter a building with the intent to commit a crime to be guilty of burglary. We expect that one who enters a building with the intent to commit a crime typically knows that he enters the building and that he even knows he enters unlawfully,
but still the State need not prove such for second degree burglary. We can conceive of someone entering a building lawfully and only later developing an intent to commit a
crime.
David Brown cites State v. Olson , 182 Wn. App. 362, 375, 329 P.3d 121 (2014) , State v. J.P. , 1 30 Wn. App. 887, 895, 125 P.3d 215 (2005) , and State v. Soto , 45 Wn. App. 839, 840

- 41, 727 P.3d 999 (1986) , to support his assertion that trespass is a lesser
include d offense of burglary. We agree that all three decisions contain passages that
declare tr espass to be a lesser included offense. In State v. Soto , Division One of this
court held that first degree criminal trespass is a lesser included offense of second degree burglary. In State v. J.P. , Division Three cited Soto when asserting that c riminal trespass is a lesser included offense of burglary. In State v. Olson , Division One of this court
cited Soto for the proposition that c riminal trespass in the first degree serves as a lesser included offense of burglary in the second degree. We agree wi th Division One’ s more recent decision in State v. Moreno , 14 W n
. App. 2d 143 (2020) that repudiates th e Soto rule. This court wrote in State v. Moreno :No. 38749

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State v. Brown

9

[T]he analysis in Soto was flawed. First degree criminal trespass requires a person to know that the ir entry or remaining in a building is unlawful. But, the first degree burglary statute requires no such knowledge. A person ’ s entry or remaining must be factually unlawful. The required mental state for first degree burglary is the intent to commit a c rime against a person or property therein

. . . . As a result, not all of the elements of first degree criminal trespass are necessary elements of first degree burglary. A person could commit all of the elements of first degree burglary, but not be guilty of first degree criminal trespass because they did not know that their entry or remaining was unlawful. Thus, to the extent our previous cases support that first degree criminal trespass is a lesser included offense of first degree burglary, we disagree with them and decline to follow them. Knowledge of the unlawfulness of one ’ s entry or remaining is not an element of first degree burglary.
State v. Moreno , 14 W n . App. 2d 143, 156 (2020) (emphasis added)

. The Supreme Court affirmed this court’s decisio n in Moreno

. State v. Moreno , 198 Wn.2d 737, 744, 499 P.3d 198 (2021) . The high court focused, however, on t he question of whether the crime of burglary possesse s an implied element of knowledge rather than if trespass is a lesser include d offense of bur glary.
CONCLUSION Because second degree trespass is not a lesser included offense of second degree burglary, trial counsel did not perform ineffectively for failing to ask for a lesser included offense jury instruction. We affirm David Brown’s convictio n for second degree burglary.No. 38749

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State v. Brown

10 A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.

______________________ Fearing , J.

WE CONCUR:

______________________________ Lawrence

- Berrey , A.C. J.

______________________________ Staab , J.