State Of Washington, Respondent V. Travis Newsome, Appellant

FILED
OMT OF APPEALS
011VIsjon 11
2014
IN THE COURT OF APPEALS OF THE STATE OF WASHING
DIVISION II
STATE OF WASHINGTON,
Respondent,
i
TRAVIS WADE NEWSOME,
in
No. 43813- 5- 11
UNPUBLISHED OPINION
22 AM 9: { 8
Xylks M TO
PENOYAR, J. — Travis Wade Newsome appeals his conviction of residential burglary.
Newsome previously appealed his first degree burglary conviction. We reversed the .jury' s
verdict and remanded for further proceedings. On remand, the trial court granted the State' s
motion to convict and sentence Newsome for residential burglary. Newsome argues that the
court erred by granting the State' s motion and convicting him of residential burglary because
residential burglary is not a lesser included offense of first degree burglary. The State concedes
error. We accept the State' s concession.
Newsome' s conviction of residential burglary is reversed, and this matter is remanded for
conviction and sentencing for a lesser included offense of the greater offense, first degree
burglary, or retrial on the alternate charge of residential burglary.

43813 -5 -II
FACTS
At his jury trial, Newsome pleaded not guilty to -first degree burglary. The trial court
instructed the jury to convict Newsome on first degree burglary if it found beyond a reasonable
doubt that Newsome ( 1) entered or remained unlawfully in a building' ( 2) with the intent to
commit a crime against a person or property therein ( 3) while being armed with a deadly weapon
when entering, remaining in, or fleeing from the building and ( 4) any of these acts occurred in
the State of Washington. If the jury did not convict Newsome of first degree burglary, the jury
was instructed to make findings on the alternate charge of residential burglary. After
deliberating, the jury convicted Newsome of first degree burglary and did not fill in the verdict
form for the residential burglary charge.
Newsome appealed his conviction of first degree burglary. This court reversed the first
degree burglary conviction and remanded for further proceedings. In its opinion, this court
recognized that the State might initiate further proceedings, including either a retrial on the
alternate charge of residential burglary or a motion to convict and sentence on a lesser included
offense.
On remand, the State asked the trial court to convict and sentence Newsome for
residential burglary, claiming that in this case residential burglary is a lesser included offense of
Newsome' s first degree burglary conviction because the jury was instructed on residential
burglary and the facts show the structure Newsome entered was both a building and a dwelling.
The trial court granted the State' s motion and convicted Newsome of residential burglary,
Jury instruction defined "[ b] uilding" as, " in addition to its ordinary meaning, any dwelling,
fenced area, vehicle, railway car, or cargo container. Building also includes any other structure
used mainly for lodging of persons, for carrying on business therein or for the use, sale or deposit
of goods." Clerk' s Papers ( CP) at 56.
2

43813 -5 -II
reasoning that a new trial on the charge of residential burglary was not necessary because the
facts were so clear in this case that the jury had to have found the victim lived in the building.
Newsome appeals, pointing out that residential burglary requires proof of entry into a
dwelling and that first degree burglary, as charged here, does not. Thus Newsome argues his
current conviction should be reversed because it was not for a lesser included offense of his
original conviction.
ANALYSIS
On remand, a court may convict and sentence a defendant to an offense without holding a
new trial if the record clearly shows the jury made explicit findings as to all of the necessary
elements of a lesser included crime. In re Pers. Restraint of Heidari, 174 Wn.2d 288, 292, 274
P. 3d 366 ( 2012) ( quoting State v. Green, 94 Wn.2d 216, 234, 616 P. 2d 628 ( 1980)). A lesser
offense is only included in a greater offense when each of the elements of the lesser offense is an
element of the greater offense, the legal prong, and the evidence supports an inference that the
defendant committed the lesser crime, the factual prong. State v. Stevens, 158 Wn.2d 304, 310,
143 P. 3d 817 ( 2006) ( citing State v. Gamble, 154 Wn.2d 457, 462 -63, 114 P. 3d 646 ( 2005)). For
residential burglary to be a lesser included offense of first degree burglary in any particular case,
the legal and factual prongs of a lesser included offense test must be satisfied.
The legal prong is not met in this case because the jury instruction on first degree
burglary did not require the jury to find every legal element of residential burglary. Whether a
building constitutes a dwelling is an element that the jury must determine. State v. McDonald,
123 Wn. App. 85, 91, 96 P. 3d 468 ( 2004). The jury found each element of first degree burglary
and consistent with its instructions, the jury did not make any findings on residential burglary.
3

43813- 5- 11
Thus, the jury did not decide whether the building Newsome entered was a dwelling.2 The trial
court erred by convicting and sentencing Newsome for residential burglary on remand because
the jury did not find beyond a reasonable doubt Newsome entered a dwelling.
Newsome' s conviction of residential burglary is reversed, and this matter is remanded for
conviction and sentencing for a lesser included offense of the greater offense, first degree
burglary, or retrial on the alternate charge of residential burglary.
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 pursuant to RCW 2. 06. 040, it
is so ordered.
We concur:
2
Jury instruction defined "[ d] welling" as " any building or structure which is used or ordinarily
used by a person for lodging." CP at 57.
4