WPIC 2.05 Building—Definition

Use this definition only if the term “building” has other than its ordinary meaning. This instruction may be used with WPIC 60.02 (Burglary—First Degree—Elements).

Do not use this instruction in arson, reckless burning, and malicious mischief cases. For such cases, use instead WPIC 88.01 (Building—Arson—Definition). Do not use this instruction if the crime charged is first degree criminal trespass or is vehicle prowling. See the Comment below.

The instruction does not necessarily apply outside of RCW Title 9A, pursuant to the introductory language of RCW 9A.04.110.

Use bracketed material as applicable. For general directions on using bracketed phrases, see WPIC 4.20 (Introduction).

If using the sentence that refers to “any other structure,” then also use all of the bracketed terms in the first sentence; otherwise, select from among the bracketed phrases in the first sentence as appropriate to the particular facts of the case.

If this instruction is used with WPIC 60.04 (Burglary—Second Degree—Elements), do not use the bracketed term “dwelling,” the bracketed term “vehicle,” or the bracketed phrase “for lodging of persons.”

Along with this instruction, use, as applicable, WPIC 2.25 (Vehicle—Definition—Nontraffic Cases) and WPIC 2.08 (Dwelling—Definition).

RCW 9A.04.110(5). The statute reads as follows:

In general. For a discussion of the cases interpreting the statutory definition of building, see Fine, 13A Washington Practice, Criminal Law and Sentencing §§ 6:6–13 (3d ed.).

This instruction has been modified by removing “[mainly]” to reflect the current statutory definition. State v. Wentz, 149 Wn.2d 342, 68 P.3d 282 (2003). See also State v. Engel, 166 Wn.2d 572, 210 P.3d 1007 (2009).

Criminal trespass. In State v. Brown, 50 Wn.App. 873, 751 P.2d 331 (1988), the court held that the definition of building in RCW 9A.04.110(5) does not apply to first degree criminal trespass. This definition, however, is applicable to second degree criminal trespass. State v. Joseph, 189 Wn.2d 645, 405 P.3d 993 (2017).

Vehicle prowling. Pursuant to RCW 9A.52.095, a person who, with the intent to commit a crime, enters or remains unlawfully in a motor home or a vessel with a cabin equipped with permanently installed sleeping quarters or cooking facilities is guilty of vehicle prowling in the first degree—a class C felony, rather than second degree burglary. To enter any other vehicle with intent to commit a crime is a gross misdemeanor under RCW 9A.52.100.

Generally, the unlawful entry of a vehicle constitutes vehicle prowling in the second degree rather than second degree burglary, unless the vehicle is used for the lodging of a person, for the carrying on of a business or for the use, sale or deposit of goods. In State v. Tyson, 33 Wn.App. 859, 658 P.2d 55 (1983), the defendant was arrested for breaking into a semitrailer truck. The court held that the defendant was properly charged with second degree burglary rather than vehicle prowling. The court found that, under the facts of the case, the semitrailer was a building, not a motor vehicle, because it was used as either a cargo container or other structure for the deposit of goods.