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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.

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No. 38749-6-III

ORDER GRANTING

MOTION TO PUBLISH

THE COURT has considered the respondent’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 public 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 III

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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.

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No. 38749-6-III

UNPUBLISHED OPINION

FEARING, J. — David Brown appeals his conviction 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

FEBRUARY 23, 2023

In the Office of the Clerk of Court

WA State Court of Appeals Division III

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No. 38749-6-III

State v. Brown

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

fenced area. Click blocked the outside of the gate with his truck so that the person seated 

in the other truck could not 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. Litzenberger 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 Brown open the gate. Brown ignored 

Litzenberger. Litzenberger telephoned Automotive Specialties general manager John 

Rostollan, who arrived five minutes later. 

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No. 38749-6-III

State v. Brown

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John Rostollan, while employing colorful language, asked the intruder, David 

Brown, to explain his presence. Rostollan insisted that 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 released 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. Someone 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 truck. 

PROCEDURE

The State 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 included offense. Nevertheless, during closing arguments, 

counsel for Brown argued that the State failed to prove beyond a reasonable doubt that 

Brown committed second degree burglary. Brown’s counsel asserted that Brown 

committed second degree trespass, not second degree burglary. The jury found David 

Brown guilty of second degree burglary. 

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No. 38749-6-III

State v. Brown

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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 included offense of the charged crime: second degree burglary. This 

contention assumes that second degree trespass constitutes a lesser included 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 that apply to claims of ineffective assistance of counsel, before 

analyzing whether trespass is a lesser included offense of burglary. 

The Sixth Amendment to the United States Constitution and article I, section 22 of 

the Washington Constitution guarantee effective assistance of counsel. State v. Classen, 

4 Wn. App. 2d 520, 535, 422 P.3d 489 (2018). To prevail on an ineffective assistance of 

counsel claim, a defendant must 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 Wn. 

App. 2d 520, 535 (2018). Performance is deficient if it falls below an objective standard 

of reasonableness. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011). To show 

prejudice, 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 Wn. App. 2d 520, 535 (2018).

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No. 38749-6-III

State v. Brown

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David Brown’s appeal illustrates the overlapping nature of the two elements 

comprising an ineffective assistance of counsel claim. If second degree trespass does not 

constitute a lesser included 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 included offense 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 offense 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 cases 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). The 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 go 

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No. 38749-6-III

State v. Brown

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free. Keeble v. United States, 412 U.S. 205, 212-13, 93 S. Ct. 1993, 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 Wn.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 against a person or property therein, he or she enters or 

remains unlawfully in a building other than a vehicle or a dwelling.

Thus, the elements of second degree burglary are: (1) entering or remaining unlawfully in 

a building other than a vehicle or dwelling, (2) with the intent to commit a crime against a 

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No. 38749-6-III

State v. Brown

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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 does 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 enters 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 doing 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 alternatives, or all three. In State v. Moreno, 14 Wn. 

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 unimportant to this appeal regardless how one construes the statute. 

The 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 must enter the building knowingly or with knowledge that the 

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No. 38749-6-III

State v. Brown

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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., 130 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 

included offense of burglary. We agree that all three decisions contain passages that 

declare trespass 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 criminal trespass 

is a lesser included offense of burglary. In State v. Olson, Division One of this court 

cited Soto for the proposition that criminal trespass in the first degree serves as a lesser 

included offense of burglary in the second degree. 

We agree with Division One’s more recent decision in State v. Moreno, 14 Wn. 

App. 2d 143 (2020) that repudiates the Soto rule. This court wrote in State v. Moreno: 

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No. 38749-6-III

State v. Brown

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[T]he analysis in Soto was flawed. First degree criminal trespass 

requires a person to know that their 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 crime 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 Wn. App. 2d 143, 156 (2020) (emphasis added). 

The Supreme Court affirmed this court’s decision in Moreno. State v. Moreno, 

198 Wn.2d 737, 744, 499 P.3d 198 (2021). The high court focused, however, on the 

question of whether the crime of burglary possesses an implied element of knowledge 

rather than if trespass is a lesser included offense of burglary. 

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 conviction for second degree 

burglary. 

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No. 38749-6-III

State v. Brown

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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.

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