State v. MacReady

Durham, A.C.J. A jury convicted the appellant, Daniel MacReady, of second degree burglary. In the early morning hours of July 29, 1979, Viola Brister and her two teenage children, William and Kathy, were asleep in their house. Mrs. Brister awoke at 5 a.m. and went downstairs where she found a man asleep in the living room stairwell. She did not recognize him, and neither did her son, when awakened. William and Kathy armed themselves with baseball bats and locked themselves in Kathy's bedroom while their mother called police. The intruder awoke and ran away as the police arrived. The police apprehended him with the aid of dogs. When the man was returned to the house, Kathy Brister recognized him as Daniel MacReady, the brother of one of her girlfriends. William Brister found a garbage can with bricks piled on top under a bathroom window which had been broken. In addition, a basement window had been forced open and a bottle of beer was spilled on the basement floor. Both William and a police officer indicated that MacReady had been drinking. A search of MacReady's pocket produced a Space Needle paperweight, worth about $1.50, which belonged to the Bristers and had been kept on the sill of the basement window. The information charged MacReady with violating RCW 9A.52.030(1), as follows: That the defendant Daniel Joseph Mac[R]eady, in King County, Washington, on or about July 29, 1979, did enter and remain unlawfully in a building, located ... in said county and state, with intent to commit a crime against a person or property therein; At the close of the State's case, the defense moved to dismiss on the basis of insufficient evidence of the required — 930 — criminal intent. The court denied the motion. MacReady did not take the stand, and the defense presented no witnesses. The court instructed the jury in the language of the burglary statute; that is, to convict MacReady of second degree burglary, the jury must find that he "entered or remained unlawfully in a building" and that the "entering or remaining was with intent to commit a crime against a person or property therein". Instruction 3. The jury was instructed that the defendant was presumed innocent, and that each element of the crime charged must be proved beyond a reasonable doubt. Instruction 2. The jury was also instructed on the inference of intent as follows: Any person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein, unless such entering or remaining shall be explained by evidence satisfactory to you to have been made without criminal intent. Instruction 5; RCW 9A.52.040. MacReady first assigns error to the court's instruction 5. He claims that this instruction shifted the burden of proof to him to disprove criminal intent, an element of the crime, in violation of due process. MacReady's contention was addressed by this court in State v. Bennett, 20 Wn. App. 783, 582 P.2d 569 (1978). In discussing the same inference questioned here, the court stated: Nor does the instruction's inference of intent, which is based upon RCW 9A.52.040, contravene defendant's due process rights. In the recent case of State v. Bishop, 90 Wn.2d 185, 580 P.2d 259 (1978), our State Supreme Court held that the presumption of intent provided for in former RCW 9.19.030 did not operate to relieve the State of its burden of persuasion, but only shifted to the defendant the burden of producing some evidence in opposition to it. RCW 9A.52.040 has reduced the former presumption to a standard inference, which merely informs the jury it is permitted, but not obligated to find the requisite intent. Thus the concerns of [State v.] — 931 — Roberts [88 Wn.2d 337, 562 P.2d 1259 (1977)] and State v. Person, 56 Wn.2d 283, 352 P.2d 189, 81 A.L.R.2d 1088 (1960) are not present. Bennett, at 789-90; see also State v. Hebert, 20 Wn. App. 656, 581 P.2d 1084 (1978). We find this reasoning persuasive. Our position is supported when the constitutional test for criminal statutory permissive presumptions is applied: It is well settled that statutory presumptions in criminal cases do not violate the Fifth Amendment unless there is no "rational connection between the facts proved and the fact presumed." Leary v. United States, 395 U.S. 6, 33, 89 S.Ct. 1532, 1546, 23 L.Ed.2d 57 (1969); Tot v. United States, 319 U.S. 463, 467, 63 S.Ct. 1241, 1244, 87 L.Ed. 1519 (1943); United States v. Black, 512 F.2d 864, 869 (CA9 1975). Manifestly, a criminal statutory presumption is not "irrational" or "arbitrary" and thus unconstitutional if the presumed fact is "more likely than not" to flow from the facts as shown by the record. Leary, supra, 395 U.S. at 36, 89 S.Ct. at 1548. United States v. Wolters, 656 F.2d 523, 526 (9th Cir. 1981); see also United States v. Gainey, 380 U.S. 63, 13 L. Ed. 2d 658, 85 S. Ct. 754 (1965). When we measure the inference of intent allowed by RCW 9A.52.040 against this standard, we find no constitutional defect; a close connection exists between the facts proved and the fact inferred. Criminal intent (the inferred fact) more likely than not flows from unlawful entering or remaining (the proven facts). This is according to "[cjommon knowledge and experience . . . The noncriminal reasons for unlawfully entering a dwelling are few." State v. Bishop, 90 Wn.2d 185, 189, 580 P.2d 259 (1978). MacReady also argues that the challenged instruction requires the defendant to present evidence to disprove criminal intent. We disagree. As stated by the Bennett court: The instruction merely refers to the evidence, from whatever source, which the jury should consider in determining whether to accept or reject the inference of criminal intent. — 932 — Bennett, at 789; State v. Taplin, 9 Wn. App. 545, 513 P.2d 549 (1973). MacReady next argues that the jurors could have assumed that instruction 5 required them to find criminal intent unless MacReady presented satisfactory evidence to the contrary. He claims that the jury interpreted the instruction as a mandatory presumption, and that the trial court should have given an explanatory instruction, citing Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979) and State v. Savage, 94 Wn.2d 569, 618 P.2d 82 (1980). He draws this argument from the following inquiry of the jury, addressed to the trial court during deliberation: In [instruction] No. 5 do the words "may be inferred" mean — "will be" [?] [I]f the defence [sic] did not present evidence, explaining the entering, do we have to infere [sic] criminal intent [?] To this the court answered, in writing: "You must answer these questions from the instructions given." We do not believe that the jury's question supports MacReady's contention. In upholding an instruction based on statutory language in State v. Johnson, 7 Wn. App. 527, 500 P.2d 788 (1972), aff'd, 82 Wn.2d 156, 508 P.2d 1028 (1973), this court has stated that A court's jury instructions may describe the crime charged in the language of the statute. . . . The court may supplement the statutory language by an explanatory instruction. . . . However, an explanatory instruction is unnecessary if the statutory language is reasonably clear and not misleading to persons of ordinary intelligence. ... If the implicit meaning of a statutory phrase is apparent to a man of ordinary intelligence, it is unnecessary to make it explicit. Johnson, at 539-40. The trial court properly told the jury, in effect, to go back and reread its instructions. Upon doing so, the jury raised no further questions, nor is there anything in the record to indicate that the jury had any difficulty in arriving at its verdict. The instruction clearly — 933 — stated that intent "may be inferred." These words are of common understanding; they are reasonably clear and are not misleading to people of ordinary intelligence. State v. Dana, 73 Wn.2d 533, 439 P.2d 403 (1968); State v. Hum-phries, 21 Wn. App. 405, 586 P.2d 130 (1978); State v. Edwards, 17 Wn. App. 355, 563 P.2d 212 (1977); State v. Johnson, supra. Both MacReady and the dissenting opinion herein rely on State v. Savage, supra, for support of the argument that the jury must receive an explanatory instruction. However, we believe that reliance on that case is misguided. First, Savage can be distinguished on its facts. It dealt with a mandatory rebuttable presumption, not with a permissible inference like the one now before this court.1 The two evidentiary devices are distinct legal concepts, and different standards apply to each.2 County Court of Ulster Cy. v. Allen, 442 U.S. 140, 156-60, 60 L. Ed. 2d 777, 99 S. Ct. 2213 (1979). Thus, even if the rules set forth in Savage are correct, they apply only to mandatory rebuttable presumptions, not to permissible inferences. In addition, there is good reason to doubt Savage as solid authority. The case consists of three opinions, none of which commanded a majority of the court. The plurality — 934 — and dissenting opinions each were signed by four justices. As discussed in the dissenting opinion, the plurality opinion contains logical inconsistencies which seriously weaken its holdings regarding the use of presumptions in criminal trials. For these reasons, we do not feel bound by Savage to hold that the court in the instant case should have given an explanatory instruction. MacReady next contends that by failing to allege the particular crime he intended to commit when he unlawfully entered, the information failed to inform him of the offense with which he was charged, as guaranteed by the United States and Washington Constitutions. U.S. Const, amend. 6; Const, art. 1, § 22 (amend. 10). Because MacReady did not object to the sufficiency of the information nor file a motion for a bill of particulars, he has waived this issue on appeal and we will not consider it. State v. Thomas, 73 Wn.2d 729, 440 P.2d 488 (1968). MacReady also argues that because the instructions did not specify the underlying crime that he intended to commit, the jury could have returned a nonunanimous verdict by relying on more than one underlying crime. Finally, he claims that if theft was the underlying crime, the jury should have received an instruction on the elements of theft. We rejected an identical contention in State v. Chelly, 32 Wn. App. 916, 651 P.2d 759 (1982). The judgment is affirmed. James, J., concurs. Footnotes [1] The jury in State v. Savage, 94 Wn.2d 569, 571-72, 618 P.2d 82 (1980) was instructed, in part, as follows: "'If and when the evidence shows that one person assailed another violently with a dangerous weapon likely to kill, and which in fact did kill the person attacked, such evidence gives rise to a presumption that the assailant intended death or great bodily harm. "'The presumption, however, may be overcome by contrary evidence, and any such evidence is sufficient to overcome it which creates in the mind of the jurors a reasonable doubt that the defendant's intent was so presumed. In the absence of evidence to the contrary, the presumption must prevail.'" [2] The plurality opinion in State v. Savage, supra, merges mandatory rebuttable presumptions and permissive inferences and creates a new presumption which it calls "semi-mandatory." Savage, at 575 n.l. We doubt if such a creature exists. As pointed out by the dissent in Savage, the "semi-mandatory” presumption harbors serious logical flaws which could easily be avoided by adherence to principles that have governed the application of presumptions in criminal law for years. Savage, at 592 (Rosellini, J., dissenting); County Court of Ulster Cy. v. Allen, 442 U.S. 140, 60 L. Ed. 2d 777, 99 S. Ct. 2213 (1979).