WPIC 60.04 Burglary—Second Degree—Elements

Use WPIC 2.05 (Building—Definition), if necessary. Do not use the bracketed term “vehicle” from WPIC 2.05 with this instruction.

Use WPIC 10.01 (Intent—Intentionally—Definition) and WPIC 65.02 (Enters or Remains Unlawfully—Definition) with this instruction.

Under some circumstances, it may be necessary to specify and define the crime alleged to have been intended by the defendant, if the defendant so requests. See Comment to WPIC 60.02 (Burglary—First Degree—Elements).

For a discussion of the phrase “this act” in element (3), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

If it is appropriate, add the bracketed phrase “other than a dwelling,” and use WPIC 2.08 (Dwelling—Definition) as well as WPIC 2.05 (Building—Definition) with this instruction.

RCW 9A.52.030.

RCW 9A.52.050 (the “burglary anti-merger statute”) provides that other crimes committed in the commission of a burglary may be prosecuted separately.

Building. See the Comment to WPIC 2.05 (Building—Definition). A “fenced area” is expressly included in the definition of building without regard for how the area is used. State v. Wentz, 149 Wn.2d 342, 68 P.3d 282 (2003) (distinguishing pre-1975 cases and overruling post-1975 cases that had reached a different conclusion).

Various other structures have also been found to constitute buildings for purposes of the burglary statutes. See State v. Dunleavy, 2 Wn.App.2d 420, 409 P.3d 1077 (2018); State v. Johnson, 132 Wn.App. 400, 132 P.3d 737 (2006) (a garage with one open side); State v. Allen, 127 Wn.App. 125, 110 P.3d 849 (2005) (private areas of a public building); State v. Miller, 91 Wn.App. 869, 960 P.2d 464 (1998) (a storage locker); State v. Tyson, 33 Wn.App. 859, 658 P.2d 55 (1983) (a cargo container); State v. Johnson, 159 Wn.App. 766, 247 P.3d 11 (2011) (a locomotive).

“Crime against a person or property.” Ordinarily, the jury instructions need not specify the crime that the defendant intended to commit inside the burglarized premises. As an exception, that crime must be specified if it is material to the defendant's theory of the case. State v. Bergeron, 105 Wn.2d 1, 16–18, 711 P.2d 1000 (1985). Applying Bergeron, the Court of Appeals has held that jury instructions in a burglary case should not include the elements of theft, even though the defendant asserted a good faith claim of title to the property that she allegedly intended to steal. State v. Pollnow, 69 Wn.App. 160, 848 P.2d 1265 (1993). The Court of Appeals did not expressly consider the applicability of the exception mentioned in Bergeron.

There is no statutory definition of what constitutes a “crime against a person or property” for purposes of the burglary statutes. Washington courts have construed the requirement with a “common sense” view of the underlying purpose of the statutes “to prohibit and punish conduct creating a risk of or actual harm to persons and property within a building.” State v. Wentz, 149 Wn.2d 342, 356, 68 P.3d 282 (2003) (Madsen, J., concurring). See State v. Snedden, 149 Wn.2d 914, 919, 73 P.3d 995 (2003) (indecent exposure is a crime against a person for purposes of a second degree burglary); State v. Stinton, 121 Wn.App. 569, 576, 89 P.3d 717 (2004) (violation of a protection order is a crime against a person for purposes of residential burglary); State v. Garcia, 179 Wn.2d 828, 318 P.3d 266 (2014) (throwing a cinderblock through a window in order to make entry does not constitute a “crime against a person or property therein”); State v. Kindell, 181 Wn.App. 844, 326 P.3d 876 (2014) (unlawful possession of a firearm is not a crime against property and cannot be the predicate offense for a burglary).

Unanimity. When the State alleged multiple acts that might have constituted burglary, and failed to specify which act it was relying upon or to have the court instruct the jury that it must unanimously agree upon which act constituted the crime, conviction of second degree burglary was reversed. State v. Brooks, 77 Wn.App. 516, 892 P.2d 1099 (1995).

For further discussion of unanimity principles in the context of entering or remaining unlawfully, see the Comment to WPIC 65.02 (Enters or Remains Unlawfully—Definition).