WPIC 65.02 Enters or Remains Unlawfully—Definition

Use bracketed material as applicable. With this instruction use WPIC 65.01 (Premises—Definition). As applicable, also use WPIC 65.03 (Enter—Definition).

RCW 9A.52.010(2).

Unlawful entry. Circumstances make the issue of “unlawful entry” problematic. In State v. Grimes, 92 Wn.App. 973, 966 P.2d 394 (1998), the defendant claimed that a stranger had asked him for help in moving and his entry was prompted by his good faith belief that it was permissive. In State v. Cordero, 170 Wn.App. 351, 284 P.3d 773 (2012), the defendant claimed his entry was done with the permission of the occupant's daughter. In both instances, the Court of Appeals held that WPIC 65.02 was a correct statement of the law and it allowed the defendants to argue their theory of the case; that they were privileged or invited to enter the premises. See also State v. Lambert, 199 Wn.App. 51, 395 P.3d 1080, review denied 189 Wn.2d 1017 (2017), cert. denied 138 S.Ct. 1571, 200 L.Ed.2d 761 (2018) (license to enter limited to visiting occupant and was revoked when defendant attacked occupant); State v. C.B., 195 Wn.App. 528, 380 P.3d 626 (2016) (license to enter can be inferred from local custom).

Note that for the offense of criminal trespass, unlike residential burglary, a statutory defense exists for good faith belief. See RCW 9A.52.090(3).

Unlawful remaining. When entry into a building is made with consent, “a defendant's invitation to enter a building can be expressly or impliedly limited as to place and time, and a defendant who exceeds either type of limit, with intent to commit a crime in the building, engages in conduct that is … burglarious.” State v. Thomson, 71 Wn.App. 634, 638, 861 P.2d 492 (1993). If a victim is drugged by a perpetrator, her invitation to the perpetrator to enter her home is withdrawn as a matter of law. State v. Lough, 70 Wn.App 302, 331–32, 853 P.2d 920 (1993), affirmed on other grounds at 125 Wn.2d 847, 889 P.2d 487 (1995). “Unlawful remaining” occurs when: “(1) a person has lawfully entered a dwelling pursuant to license, invitation or privilege; (2) the invitation, license or privilege is expressly or impliedly limited; (3) the person's conduct violates such limits; and (4) the person's conduct is accompanied by intent to commit a crime in the dwelling.” State v. Crist, 80 Wn.App. 511, 514, 909 P.2d 1341 (1996) (citing State v. Thomson, 71 Wn.App. 634, 861 P.2d 492 (1993)).

In State v. Allen, 127 Wn.App. 125, 110 P.3d 849 (2005), the court reasoned that once a burglar has entered a building unlawfully, his “continuing presence in the building satisfies the statutory definition of unlawful remaining.” State v. Allen, 127 Wn.App. at 133; State v. Johnson, 132 Wn.App. 400, 409–10, 132 P.3d 737 (2006).

Unanimity. The two means of committing a burglary — unlawful entry and unlawful remaining — are not generally repugnant and, therefore, jury unanimity as between them is not required. Division One of the Court of Appeals addressed this issue in the following terms:

State v. Gonzales, 133 Wn.App. 236, 243–44, 148 P.3d 1046 (2006).

Family home. In 1991, the Washington Supreme Court held that “… a juvenile can only be convicted of burglary of his family home if his privilege to enter the home is revoked. A juvenile's parents can only revoke his or her privilege to enter if they: (1) do so expressly and unequivocally, and (2) provide some alternative means of assuring that the parents' statutory duty of care is met.” State v. Howe, 116 Wn.2d 466, 477, 805 P.2d 806 (1991).

Fifteen years later, without citing to Howe, the Supreme Court seemed to alter that holding. “[N]o Washington court has held that to find an unlawful entry, express limits on the juvenile must exist. … We … hold that a child's license to enter the family home, or any room within, may be limited expressly or by clear implication.” State v. Cantu, 156 Wn.2d 819, 825, 132 P.3d 725 (2006).

Consistent with the purposes of domestic violence protection laws, the consent of a protected party cannot override a specific court order excluding a defendant from the residence of the protected party, even if it is also the defendant's residence. State v. Sanchez, 166 Wn.App. 304, 310–11, 271 P.3d 264 (2012). However, in a case in which a no-contact order did not expressly bar the defendant from the residence he shared with the protected person, his entry (even with the intent to commit a crime) was not unlawful and therefore could not give rise to a burglary charge. State v. Wilson, 136 Wn.App. 596, 150 P.3d 144 (2007). To the contrary, the entry was found unlawful when an ex-husband entered his ex-wife's home, with her permission but in violation of a no-contact order that barred him from the residence. State v. Sanchez, 166 Wn.App. 304, 271 P.3d 264 (2012).