State Of Washington, Respondent V. Ryan Michael Johnson, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 47876-5-II
Respondent,
v.
RYAN MICHAEL JOHNSON, UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — Ryan Johnson appeals his convictions for one count each of residential
burglary and felony harassment. He argues that the State presented insufficient evidence of his
intent to commit a crime within a dwelling, as required for burglary. He also argues that the trial
court erred by refusing to give a lesser included offense instruction for the felony harassment
charge. We affirm Johnson’s conviction for residential burglary because sufficient evidence
supports his conviction. We reverse his conviction for felony harassment because Johnson was
entitled to a lesser included instruction on misdemeanor harassment, and we remand for a new
trial on that charge.
FACTS
Eighty-year-old Reba Costi lived alone. At 2:30 on a January morning, she awoke to the
sounds of someone attempting to break into her house through a side door. The would-be
intruder yelled at her to “open the f[***]ing door,” threatening that if she did not, “when he got
in there he was going to break [her] f[***]ing neck.” 1 Verbatim Report of Proceedings (VRP)
at 53. Scared, while barefoot and in her pajamas, Costi ran outside to call 911.
Filed
Washington State
Court of Appeals
Division Two
October 25, 2016

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While on the phone with the 911 operator, Costi reported that a stranger was breaking in
and told the operator “that he is gonna to [sic] come in here and he’s gonna kill me.” Ex. 2 at 1.
Meanwhile, Johnson succeeded in forcibly entering the house, damaging the doorframe.
Although Costi was afraid that the intruder would hurt her, she felt too cold to stay
outside and decided to reenter the house. This brought her within arm’s reach of the intruder,
Ryan Johnson. Johnson was extremely drunk. Costi told him to leave her house, and he refused.
He demanded: “Give me the phone,” and Costi complied out of fear that Johnson would “get
maybe violent.” 1 VRP at 59. After taking the phone away from Costi, Johnson began to speak
with the 911 operator. While Johnson continued to talk to the 911 operator, police arrived and
arrested him.
The State charged Johnson with one count of residential burglary1 with the aggravating
factor that the victim was present during the burglary.2 It further charged him with one count of
felony harassment for threatening to kill Costi.3 In a bill of particulars, the State specified that it
believed Johnson committed burglary either by entering unlawfully with the intent to commit
felony harassment in Costi’s residence or by remaining unlawfully with the intent to commit
theft.
At trial, witnesses testified to the above facts. Johnson proposed a special verdict form
and corresponding instruction directing the jury to find him guilty of the lesser included offense
1 RCW 9A.52.025(1).
2 RCW 9.94A.535(3) (u).
3 RCW 9A.46.020(1)(a)(i), (2)(b).

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of misdemeanor harassment if it found him not guilty of felony harassment. The trial court
declined to instruct the jury on the lesser included offense of misdemeanor harassment despite
recognizing that “‘I’m gonna break your f[***]ing neck’ means that’s a fatal injury or she’s
going to be paralyzed for the rest of her life.” 3 VRP at 280 (emphasis added). Johnson did not
request, and the trial court did not give, an instruction that the jury must be unanimous on the
crime Johnson intended to commit when he entered or remained in Costi’s residence.
The jury convicted Johnson of residential burglary and felony harassment. It also found
the aggravating circumstance that Costi was present during the burglary. Johnson appeals.
ANALYSIS
I. SUFFICIENCY OF THE EVIDENCE
Johnson argues that insufficient evidence supports his conviction for residential burglary.
We disagree.
A. Standard of Review
Evidence is sufficient to support a guilty verdict if any rational trier of fact, viewing the
evidence in the light most favorable to the State, could find the elements of the charged crime
beyond a reasonable doubt. State v. Longshore, 141 Wn.2d 414, 420-21, 5 P.3d 1256 (2000).
An evidence sufficiency challenge “admits the truth of the State’s evidence and all inferences
that reasonably can be drawn therefrom.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068
(1992). We defer to the jury’s assessment of conflicting testimony, witness credibility, and
evidence weight. State v. Carver, 113 Wn.2d 591, 604, 789 P.2d 306(1989).

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B. Unanimity Instruction
As an initial matter, Johnson argues, and the State concedes, that because the trial court
did not give a unanimity instruction, sufficient evidence must support both of the State’s
burglary theories. Residential burglary is an alternative means crime; accordingly, the jury must
unanimously express the means by which the defendant committed burglary unless sufficient
evidence supports both alternative means. State v. Allen, 127 Wn. App. 125, 130, 110 P.3d 849
(2005). Thus, we examine both alternative means for sufficient evidence.
C. Evidence of Intent To Commit a Crime Inside
To convict Johnson of residential burglary as charged here, the State had to prove beyond
a reasonable doubt that he (1) entered or remained unlawfully in a dwelling without authorization
and (2) intended to commit a crime within that dwelling. State v. Grimes, 92 Wn. App. 973,
977-78, 966 P.2d 394 (1998) (citing RCW 9A.52.025(1)). “The intent required by our burglary
statutes is simply the intent to commit any crime against a person or property inside the
burglarized premises.” State v. Bergeron, 105 Wn.2d 1, 4, 711 P.2d 1000 (1985). The State
presented two theories of Johnson’s criminal intent: that he (1) entered unlawfully with intent to
commit felony harassment or (2) remained unlawfully with intent to commit theft of Costi’s
phone. We examine these theories in turn, holding that sufficient evidence supports both.
1. Sufficient Evidence of Intent To Commit Felony Harassment Inside
Felony harassment requires proof (1) that the defendant threatened to kill a person and (2)
that, by the defendant’s words or conduct, the person was placed in reasonable fear that the threat
to kill him would be carried out. RCW 9A.46.020(2)(b). Johnson argues that there is
insufficient evidence of his intent to commit felony harassment while he entered the dwelling

No. 47876-5-II
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because he had already completed the felony harassment by threatening Costi outside the door.
But after making the verbal threat to break Costi’s neck unless she opened the door, Johnson
forcibly broke through Costi’s door to enter her dwelling. This conduct, occurring just moments
after Johnson made the verbal threat, could reasonably be interpreted as a continuation of his
threat to kill her.
Taking all inferences in the light most favorable to the State, a rational jury could
conclude that Johnson continued to harass Costi by breaking into her dwelling shortly after
threatening to break her neck unless she let him in. Therefore, sufficient evidence exists that
Johnson entered unlawfully with the intent to commit felony harassment by further putting Costi
in reasonable fear that he would kill her.
2. Sufficient Evidence of Intent To Commit Theft Inside
Theft occurs when a person “wrongfully obtain[s] or exert[s] unauthorized control over
the property or services of another or the value thereof, with intent to deprive him or her of such
property or services.” RCW 9A.56.020(1)(a). The intent to “permanently” deprive the victim of
the stolen property is not an element of theft. State v. Komok, 113 Wn.2d 810, 816-17, 783 P.2d
1061 (1989).
Viewing all evidence here in the light most favorable to the State, a rational jury could
have found that Johnson remained unlawfully in Costi’s residence with the intent to commit theft
of her phone. After she told him to leave, he refused to do so and instead demanded she give
him her phone. She complied out of fear that he would hurt her. Then, he talked on the phone
with the 911 operator, and while he did so, Costi could not use the phone. This evidence
supports a finding that Johnson wrongfully obtained Costi’s phone with the intent to deprive her

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of it. See Komok, 113 Wn.2d at 816 n.4. Thus, sufficient evidence supports this theory of
burglary.
II. LESSER INCLUDED OFFENSE INSTRUCTION
Johnson argues that the trial court erred by refusing to give his requested instruction on
the lesser included offense of misdemeanor harassment. We agree.
A. Standard of Review
Where the evidence supports it, both the State and the defendant have a statutory right to
present an instruction to the jury on lesser included offenses. State v. Gamble, 154 Wn.2d 457,
462, 114 P.3d 646 (2005). If the trial court fails to give a lesser included instruction when the
defendant is entitled to one, it commits reversible error. State v. Ginn, 128 Wn. App. 872, 878,
117 P.3d 1155 (2005). We apply the State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978), test
to determine whether a defendant is entitled to a lesser included offense instruction. State v.
Porter, 150 Wn.2d 732, 736, 82 P.3d 234 (2004).
A defendant is entitled to a lesser included offense instruction if the two prongs of the
Workman test are met. Workman, 90 Wn.2d at 447. First, under the Workman test’s legal prong,
each element of the lesser included offense must be a necessary element of the charged offense.
90 Wn.2d at 447-48. Second, to meet the Workman test’s factual prong, evidence presented in a
case “must raise an inference that only the lesser included[] . . . offense was committed to the
exclusion of the charged offense.” State v. Fernandez-Medina, 141 Wn.2d 448, 455, 6 P.3d
1150 (2000). When analyzing the factual prong, we view the evidence that purports to support a
requested instruction in the light most favorable to the party who requested the instruction at
trial. 141 Wn.2d at 455-56.

No. 47876-5-II
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The parties agree that Workman’s legal prong is met here. Where only the factual prong
is in dispute, we review the trial court’s determination for an abuse of discretion. State v.
LaPlant, 157 Wn. App. 685, 687, 239 P.3d 366 (2010). A trial court abuses its discretion when
its decision is manifestly unreasonable or based on untenable grounds or reasons. State v. Neal,
144 Wn.2d 600, 609, 30 P.3d 1255 (2001).
To determine whether the factual prong of the Workman test is satisfied, we determine
whether the evidence “‘affirmatively establish[es] the defendant’s theory of the case—it is not
enough that the jury might disbelieve the evidence pointing to guilt.’” Porter, 150 Wn.2d at 737
(quoting Fernandez-Medina, 141 Wn.2d at 456). If the evidence would permit a jury to
rationally find the defendant guilty of the lesser offense and acquit him of the greater offense, a
lesser included instruction should be given. State v. Berlin, 133 Wn.2d 541, 551, 947 P.2d 700
(1997).
B. Misdemeanor Harassment Instruction
A person commits misdemeanor harassment if, without lawful authority, he or she
knowingly threatens to cause bodily injury immediately or in the future to the person threatened
or to any other person and, by words or conduct, places the person threatened in reasonable fear
that the threat will be carried out. RCW 9A.46.020(1). The distinction between felony and
misdemeanor harassment lies in the type of threat: “[t]he offense of harassment is elevated from
a misdemeanor to a felony when the threat is a threat to kill.” State v. Mills, 154 Wn.2d 1, 12,
109 P.3d 415 (2005).
At trial, Costi testified that Johnson threatened to break her neck before forcibly entering
her home. Costi told the 911 operator that she believed Johnson would kill her, and she testified

No. 47876-5-II
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at trial that she thought Johnson might hurt her. Johnson later requested an instruction on the
lesser included offense of misdemeanor harassment. The trial court denied Johnson’s requested
instruction despite stating, “‘I’m gonna break your f[***]ing neck’ means that’s a fatal injury or
she’s going to be paralyzed for the rest of her life.” 3 VRP at 280.
The evidence presented at trial, viewed in a light most favorable to Johnson, raises the
inference that Johnson committed only misdemeanor harassment. As the trial court recognized,
the threat to break another’s neck is not necessarily a threat to kill. Rather, the jury could infer
from these facts that Johnson threatened only to injure Costi. Therefore, the trial court abused its
discretion by not instructing the jury on the lesser included offense.
We affirm Johnson’s conviction for residential burglary but reverse his conviction for
felony harassment and remand for a new trial on that charge.
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.
________________________________
Worswick, J.
I concur:
_________________________________
Melnick, J.

No. 47876-5-II
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MAXA, A.C.J. (dissenting in part) – I agree that the trial court erred in failing to give a
lesser included instruction on misdemeanor harassment and therefore that Ryan Johnson’s felony
harassment conviction must be reversed. I also agree that sufficient evidence existed to support
Johnson’s residential burglary conviction based on his intent to commit harassment in Reba
Costi’s residence. However, I disagree that there was sufficient evidence to support the
residential burglary conviction based on Johnson’s intent to commit theft of Costi’s telephone.
RCW 9A.56.020(1) provides that theft includes the unauthorized control over the
property of another. Johnson demanded that Costi give him her telephone. But there is no
evidence that Johnson intended to take the phone. His only intent was to use the phone. Johnson
wanted to – and did – talk to the 911 operator who was already on the line. Under the
circumstances here, I do not believe that Johnson’s use of Costi’s telephone to talk with the 911
operator constituted a theft of that telephone.
RCW 9A.56.020(1) provides that theft also includes the unauthorized control over the
“services” of another. In certain situations, the unauthorized use of a telephone might constitute
the theft of services. See State v. Brunson, 76 Wn. App. 24, 31, 877 P.2d 1289 (1994)
(suggesting that an unpermitted use of the telephone would amount to a theft of services). But
here, Johnson did not use the phone to initiate a call. Costi was already talking on the phone. He
simply wanted to join the conversation. Under the circumstances here, I do not believe that
Johnson’s use of Costi’s telephone to join a conversation with the 911 operator already on the
line constituted a theft of services.

No. 47876-5-II
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I would reverse Johnson’s residential burglary conviction because the evidence does not
support one of the alternative means of the crime – that Johnson entered or remained in Costi’s
residence with the intent to commit theft of her telephone.
______________________________
MAXA, A.C.J.