holding that State was not required to specify felony where the only intent required in burglary statute was the “intent to commit a crime against a person or property therein” and such intent was not an element of the offense
How later courts described this case
- holding that State was not required to specify felony where the only intent required in burglary statute was the “intent to commit a crime against a person or property therein” and such intent was not an element of the offense
- observing the difficulty a trial court would have in instructing a jury as to "all possible crimes, any one of which might have been in the defendant's mind at the time he attempted to enter," and noting "such a plethora of instructions ... [might] simply result in visiting total confusion upon an otherwise uncomplicated case"
- indicating that, for purposes of determining whether harmless error analysis applies to a particular error, Washington courts will follow the lead of the U.S. Supreme Court
- either inference instruction "or the pattern circumstantial evidence instruction (WPIC 5.01) may appropriately be given”
Written by the judges who cited it.
The opinion
Utter, J.
(dissenting) — Two years ago this court decided that the State, in a burglary prosecution, must prove the specific crime a defendant intended against a person or property in the premises he entered or remained in unlawfully. State v. Johnson, 100 Wn.2d 607 , 674 P.2d 145 (1983). This case was, in turn, based upon State v. Bonds, 98 Wn.2d 1 , 653 P.2d 1024 (1982), cert. denied, 464 U.S. 831 (1983). We so ruled in light of recent United States Supreme Court decisions requiring a state to prove beyond a reasonable doubt every fact necessary to constitute the crime charged. Johnson , at 614; see In re Winship, 397 *21 U.S. 358, 364 , 25 L. Ed. 2d 368 , 90 S. Ct. 1068 (1970); Sandstrom v. Montana, 442 U.S. 510, 520 , 61 L. Ed. 2d 39 , 99 S. Ct. 2450 (1979).
Although I share the concern of the majority that dwellings be safe from burglars, I must dissent from this majority opinion abandoning what our court found was a constitutional mandate. I would reverse and remand for entry of additional findings consistent with the rule articulated in Johnson .
The majority set forth two separate explanations why it is proper to overrule Johnson . Upon examination, the two explanations conflict with each other. On the one hand, the majority rejects Johnson reasoning that burglary is a statutory offense, changed by the Legislature over the years, which no longer retains the common law requirement that the State prove what crime was intended. On the other hand, the majority asserts that Johnson improperly rejects 90 years of court precedent not requiring the State to prove the crime intended. At first glance, these explanations support the majority position. The 90 years of precedent, however, developed from case law which is no longer constitutionally sound. The same constitutional developments which undermine Linbeck v. State, 1 Wash. 336, 337-38 , 25 P. 452 (1890) and its progeny precipitated a legislative amendment in 1975 removing from the criminal code the invalid mandatory presumption rejected by the reasoning of the United States Supreme Court in Sandstrom and relied on in Linbeck .
Over the same 90 years, the burglary statute itself remained the same. Interpreting the burglary statute, the Linbeck majority recognized the specific crime intended is an element of burglary in most states and "would clearly be the law here were it not for § 828 of our code." Linbeck , at 338. That element of the crime did not magically disappear over the course of years; when the Legislature repealed the presumption statute that element remained for the State to prove beyond a reasonable doubt.
*22 I
As the majority points out, the issue decided in Linbeck is nearly the same as that before us, " [t]he contention . . . being, that it is not only necessary to charge that the entering was with an intent to commit a misdemeanor, but that the particular misdemeanor which he intended to commit must be set out." Linbeck , at 337. The Linbeck majority recognized that the specific crime intended is an element of burglary in most states and "would clearly be the law here were it not for § 828 of our code." Instead, Linbeck continued, "[t]he burden of showing the intent with which he [the accused] entered is, by said section, cast upon him ..." Linbeck , at 338. The Linbeck dissent correctly explained that Code of 1881, § 828 overrides the presumption of innocence. Linbeck , at 340 (Anders, C.J., dissenting).
Under modern case law, the Linbeck interpretation of the presumption statute would be unconstitutional. "A presumption which would permit but not require the jury to assume intent from an isolated fact would prejudge a conclusion which the jury should reach of its own volition. . . . [T]his presumption would conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime." Morissette v. United States, 342 U.S. 246, 275 , 96 L. Ed. 288 , 72 S. Ct. 240 (1952). Mandatory presumption instructions also violate due process. Sandstrom v. Montana, 442 U.S. at 520 .
Because the Linbeck rule is invalid under modern federal constitutional law, the majority's reliance on it cannot support rejection of Johnson .
II
Even if the specific crime intended were not a recognized element of burglary subsequent to Linbeck , this court would be required to interpret the statute to include intent to commit a specific crime as an element.
A mere averment that the accused has entered a building *23 for the purpose of committing a "crime" fails wholly to inform a person of the specific offense it is claimed was intended. When a statute does not define the crime with sufficient certainty to apprise the defendant of the nature of the accusation against him, to the end that he may prepare his defense and plead the judgment as bar to any subsequent prosecution for the same offense, it is insufficient to charge in the language of the statute. State v. Royse, 66 Wn.2d 552 , 403 P.2d 838 (1965); accord, Russell v. United States, 369 U.S. 749, 765 , 8 L. Ed. 2d 240 , 82 S. Ct. 1038 (1962).
Ill
It is also necessary to address the "serious consequences" to law enforcement predicted by the majority. One concern the majority raises is that the State will meet great difficulty in attempting to prove beyond a reasonable doubt the intent of someone who has merely attempted a burglary to commit a specific crime in the premises he intended to illegally enter. We examined this contention in Johnson and indicated why we believed the State can usually surmount this alleged difficulty.
In the first place, relatively few burglaries take place without at least some step indicating the nature of the crime intended, such as entry into the assault victim's bedroom or the attempted removal of property. Absent any such evidence, moreover, the State is justified in alleging, and the jury justified in inferring, an intent to commit theft, that being the most usual motive for burglary. United States v. Thomas, 444 F.2d 919, 924 (D.C. Cir. 1971) . . .
Johnson , at 625. Furthermore, Johnson does not require that the jury agree as to which particular crime was intended so long as each juror agrees that the defendant intended to commit one of the crimes specified and upon which the jury was instructed.
If the majority believes its holding today can impact the burglaries and attempted burglaries committed since Johnson , it is surely mistaken. Where a court overrules a prior *24 decision so as to enlarge the scope of criminal liability, due process and the prohibition against ex post facto laws require the new rule must be applied prospectively only. United States v. Goodheim, 651 F.2d 1294 (9th Cir. 1981); United States v. Potts, 528 F.2d 883 (9th Cir. 1975); see Bouie v. Columbia, 378 U.S. 347, 353-54 , 12 L. Ed. 2d 894 , 84 S. Ct. 1697 (1964).
The majority opinion relies on outdated case law and fails to recognize recent constitutional developments and the supporting federal case law to go out of its way to overrule a decision less than 2 years old. I believe we must reverse and remand for entry of proper findings.
Dolliver, C.J., and Pearson, J., concur with Utter, J.