Burglary generally involves a person entering and/or remaining in another person's property with the intent to commit a crime against a person or property. There are, however, three types of burglary in the State of Washington. They are: burglary in the first degree, burglary in the second degree, and residential burglary. All are considered felonies and are punishable by imprisonment and/or a fine.Burglary in the First Degree:
According to RCW §9A.52.020, a person may be charged with burglary in the first degree if a person:
- Unlawfully enters and/or remains in another person's property
- With the intent to commit a crime against a person or his property; AND
- While entering or remaining in the property the actor or his accomplice is either (a) armed with a deadly weapon, OR (b) assaultsassaults a person.
This does not only include entering a home or other structure, but may also involve a car, boat or other such property.
Penalties for Burglary in the First Degree in Washington:
Burglary in the first degree is a class A felony, which RCW §9A.20.021 defines as punishable by a maximum sentence of life in prison, a maximum fine of $50,000, or both. The court may require restitution instead of a fine.Burglary in the Second Degree:
According to RCW §9A.52.030RCW §9A.52.030, a person may be charged with burglary in the second degree if a person:
- Unlawfully enters and/or remains in another person's property OTHER THAN a vehicle or dwelling
- With the intent to commit a crime against a person or his property.
Penalties for Burglary in the Second Degree in Washington:
Burglary in the second degree is a class B felony, which RCW §9A.20.021 defines as punishable by up to ten years in prison, a maximum fine of $20,000, or both. The court may require restitution instead of a fine.Residential Burglary:
According to RCW §9A.52.025, a person may be charged with residential burglary if a person:
- Unlawfully enters and/or remains in another person's dwelling OTHER THAN a vehicle
- With the intent to commit a crime against a person or his property.
Penalties for Residential Burglary in Washington:
Residential burglary is a class B felony, which RCW §9A.20.021 defines as punishable by up to ten years in prison, a maximum fine of $20,000, or both. The court may require restitution instead of a fine. It is important to note that, even though residential burglary is in the same class as burglary in the second degree, it is considered a more severe offense.Defending a Burglary Charge:
There are many defenses to a burglary charge. Of course, your defense strategy depends upon the degree of the offense, among other things. However, there are two basic elements involved in all burglary offenses: (1) unlawful entry upon a person's property and (2) an intent to commit a crime against a person or property. Therefore, one of the basic ways to defend a burglary charge is to challenge either of these elements. For example, you may argue that you did not, in fact, enter another person's property; that you entered but your entry was lawful; or that you entered, maybe even unlawfully, but that you did not enter with the intent to commit a crime against a person or property. Your defense strategy is crucial, and the help of a skilled criminal defense attorney is strongly advised.
Burglary in the First & Second Degree
Burglary is a felony offense in Washington State, with very serious penalties and consequences. There are four separate burglary-related statutes in Washington. Violations of these statutes each carry separate, specific penalties. If you are charged with one of these offenses, it is essential that you contact a criminal defense attorney immediately. Given the seriousness of the charges, you will need skilled, experienced, high quality legal counsel.
A person is guilty of burglary in the first degree if, with intent to commit a crime against a person or property therein (residence or non-residence), he or she enters or remains unlawfully in a building and if, in entering or while in the building or in immediate flight therefrom, the actor or another participant in the crime (a) is armed with a deadly weapon, or (b) assaults any person.
- Penalty: Burglary in the first degree is a class A felony, punishable by lengthy periods of incarceration including up to life in prison, a fine of up to $50,000, or both a fine and prison time.
A person is guilty of residential burglary if, with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle.
- Penalty: Residential burglary is a class B felony, punishable by prison sentences up to 10 years and/or fines up to $20,000. In establishing sentencing, residential burglary is to be considered a more serious offense than second degree burglary.
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.
- This is the least severe of the burglary offenses because it does not include burglarizing a home and the accused is not armed. However, it is still a felony charge.
- Penalty: Burglary in the second degree is a class B felony, punishable by prison sentences up to 10 years and/or fines up to $20,000. In establishing sentencing, burglary in the second degree is to be considered a less serious offense than residential burglary.
A person is guilty of making of having burglar tools if they make or have in their possession any tool that is commonly used for burglary (crow-bars, lock pit, false key, dynamite torches, etc.) under circumstances indicating an intent to use or employ.
- Penalty:Making of having burglar tools is a gross misdemeanor, punishable by up to a year in jail and a $5,000 fine.
It is vital that you contact an experienced criminal defense attorney today if you or someone you love have been charged with a burglary-related crime. The elements of the definitions listed above must be proven beyond a reasonable doubt. This includes unlawful entry and criminal intent.
You will need a knowledgeable attorney with experience and expertise to challenge your case effectively. Penalties and consequences are severe and potentially life-changing – There is no time to waste. Contact us for a Free Consultation so we can get started advocating for you, working hard to achieve the best possible outcome. We will carefully review all facets of the case as well as circumstances surrounding the case.
45 Wn. App. 667, STATE v. FLIEGER
CITE: 45 Wn. App. 667, 726 P.2d 1257
STATE v. FLIEGER
CAUSE NUMBER: 7311-4-III
FILE DATE: October 14, 1986
CASE TITLE: The State of Washington, Appellant, v. Phillip Duane Flieger, Respondent.
 Statutes - Construction - Legislative Intent - Statutory Language. A court ascertains legislative intent primarily from the language of the statute itself.
 Burglary - Building - Definition - "Fenced Area". The term "fenced area," which is set forth in RCW 9A.04.110(5) as one of the meanings of the word "building," is limited to areas fenced for the primary purpose of protecting property stored therein.
 Indictment and Information - Factual Sufficiency - Dismissal of Charge. An information is subject to dismissal if the probable cause affidavit which supports the information fails to allege facts making a necessary issue on each element of the crime charged.
NATURE OF ACTION: The defendant was charged with second degree burglary for entering a residential backyard enclosed by a fence.
Superior Court: The Superior Court for Franklin County, No. 84 1-50120-0, Fred R. Staples, J., dismissed the prosecution on August 6, 1985.
Court of Appeals: Holding that the fenced backyard did not constitute a building for purposes of the second degree burglary statute, the court AFFIRMS the judgment.
COUNSEL: C. J. RABIDEAU, PROSECUTING ATTORNEY, and PAMELA CAMERON, DEPUTY, for appellant.
J. SCOTT TIMMONS and TIMMONS, HAMES & HOLLENBECK, for respondent (appointed counsel for appeal).
AUTHOR OF MAJORITY OPINION: Thompson, J.-
The trial court dismissed the information charging Mr. Phillip D. Flieger with burglary in the second degree. The State appeals, contending the trial court erred in finding, as a matter of law, that the fenced area described in the probable cause affidavit did not constitute a "building", as defined by RCW 9A.04.110(5). We agree with the trial court and affirm.
In the early morning hours of August 17, 1984, Rodney Stroud reported to the Pasco Police Department that he had chased a person from his back porch area. The porch is not enclosed and lies within an area of Mr. Stroud's backyard surrounded by a 6-foot solid wooden fence. The fence has four gates, two of which are padlocked. A third has a latch that cannot be reached from the outside, and a fourth has a latch than can be reached from the outside by reaching over the gate. Mr. Stroud told police officers that all the gates were locked or closed to protect property stored in the enclosed backyard, including goods secured in a storage shed within the enclosure.
Mr. Stroud's description and positive photo identification led officers to believe that Mr. Flieger was the subject observed fleeing the porch. Based upon this information, contained in an affidavit in support of probable cause, Mr. Flieger was arrested and charged by information with burglary in the second degree under RCW 9A.52.030. «1»
Mr. Flieger moved to dismiss, arguing the information failed to allege a necessary element of burglary in the second degree- entry of a building as defined by RCW 9A.04.110(5). «2»
Upon hearing, the trial court agreed and granted the dismissal, resulting in this appeal.
[1, 2] In 1975, when the Legislature revised the criminal code of the State of Washington, it changed the words defining "building" in the burglary statute by adding "fenced areas". Case law addressing the issue of whether a fenced enclosure constituted a "building" or "structure" for purposes of second degree burglary under former RCW 9.19.020 focused on whether the fence was "of such a nature that it [was] erected mainly for the purpose of protecting property within its confines and [was], in fact, an integral part of a closed compound . . ." STATE v. ROADHS, 71 Wn.2d 705, 708-09, 430 P.2d 586 (1967); STATE v. LIVENGOOD, 14 Wn. App. 203, 209, 540 P.2d 480 (1975). In both ROADHS and LIVENGOOD, the defendants entered a warehouse- type compound, surrounded by a cyclone fence, and used for storage of tools, wire, and other materials.
In construing a statute, the court's task is to carry out the intent of the Legislature, which must be determined primarily from the language of the statute itself. STATE v. NESLUND, 103 Wn.2d 79, 690 P.2d 1153 (1984). A look at the language defining "building" indicates the Legislature intended "fenced area" to include the ROADHS/LIVENGOOD "main purpose" limitation.
The definition of building in RCW 9A.04.110(5) includes both specific references and a catchall "or any other structure". The phrase following "structure" includes language that explains or elaborates on the specific references. For instance, "dwelling" is qualified by "used for lodging of persons"; "vehicle, railway car, cargo container" would coincide with "use, sale or deposit of goods" and "fenced area" either "carrying on business therein" or, more likely, "deposit of goods". Thus, the phrase both modifies "structure" and gives meaning to the specific reference to "fenced area".
The court in STATE v. COUCH, 44 Wn. App. 26, 720 P.2d 1387 (1986) confirmed this interpretation of the building definition. There, the area entered was beneath a tavern and usually enclosed by aluminum skirting. Even though not used by patrons of the tavern, the area was an enclosed area, associated with the building and used in connection with the business of the tavern. The court read the language in RCW 9A.04.110(5) "used for lodging of persons or for carrying on business therein, or for the use, sale or deposit of goods" as modifying the previous terms as well as "any other structure". Thus, to be a "building" that can be "entered", the fenced area must be either used for lodging of persons, for carrying on a business, or for the use, sale or deposit of goods.
Similarly, in STATE v. TYSON, 33 Wn. App. 859, 658 P.2d 55 (1983), the issue was whether entry of a semitrailer constituted the requisite entry of a building. The court, while pointing out that the term "building" is "broadly and uniquely defined" in the second degree burglary statute noted that among other things it "includes cargo containers and other structures USED FOR THE DEPOSIT OF GOODS". (Italics ours.) TYSON, at 862-63. There, uncontroverted evidence established that the semitrailer was either a cargo container or other structure used for the deposit of goods, and thus was a building for purposes of the burglary statute.
Here, although the affidavit in support of probable cause infers some goods were stored in the backyard, the State's exhibits and arguments during the hearing confirmed that this was a fence enclosing a backyard, much like the backyard of any other private home. As such, it was not a "fenced area" equivalent to a "building". Since its "main purpose" under the ROADHS and LIVENGOOD tests was not protection of property or goods therein, it did not constitute a building for purposes of the burglary in the second degree statute.
A second issue raised by the State is whether the trial court erred in concluding there was insufficient evidence to support the crime charged and dismissing the information. The State contends that even if all fenced areas are not buildings, for purposes of the burglary statute, in this case there are sufficient facts alleged in the probable cause affidavit to create a jury question on the issue. Dismissal was thus an abuse of discretion because the trial court, in effect, decided a factual issue.
 The sufficiency of an information upon which an accused is charged may be properly challenged by a motion to dismiss. STATE v. MORTON, 83 Wn.2d 863, 866, 523 P.2d 199 (1974). If it is clear from the State's pleadings that it cannot make a factual issue on each element of the crime charged, the trial court may resolve the issue prior to trial as a matter of law. STATE v. MAURER, 34 Wn. App. 573, 577, 663 P.2d 152 (1983). However, if the charge is sufficient on its face, a trial court cannot presume to resolve factual issues and must allow the State to present its case. STATE v. MALONEY, 1 Wn. App. 1007, 465 P.2d 692 (1970). We have already decided that a dwelling's fenced backyard is not a building as a matter of law. Thus, no fact issue was presented and dismissal was proper.
In addition, where no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, a trial court must dismiss. STATE v. GREEN, 94 Wn.2d 216, 616 P.2d 628 (1980). Here, since no "building" was entered, no trier of fact could find all elements of burglary in the second degree. Thus, we find no abuse of discretion.
Green, C.J., and Munson, J., concur.
2 rcw burglary
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