January 29, 2010
Appeals court sides with friendly intruder
By ANDREW BERGH
Special to the Journal

So when is a residential burglary not a residential burglary? When it's not “therein.” Clear as mud? Then let's see if State v. Devitt helps clarify things.

The Case of the Friendly Intruder, if you will, emanates from Spokane County.

The local constabulary thought Steven Devitt had stolen a car that was later involved in a hit-and-run accident, so they were probably quite pleased when they saw Devitt about a mile from the scene of the reported crime.

So was Devitt cool and nonchalant after seeing the police? No way José. He took off running in the opposite direction. It should go without saying that when a suspect flees, the cops usually give chase.

Looking for a place to hide, Devitt went to an apartment complex and entered the apartment of Debbie Zavala through an unlocked sliding glass door. The problem was, Zavala happened to be home.

Thinking fast — or maybe just blurting out the first words that came to mind — Devitt asked Zavala for a glass of water. More than happy to oblige, she instead offered a glass of ice tea and started talking with the stranger.

The two apparently hit it off, as Devitt conversed about his children and even volunteered that he was running away from the police because he was involved in a car theft. Zavala, meanwhile, was so hospitable that she let Devitt use her phone — and at no time during the encounter was she concerned for her safety or worried that her unexpected guest might steal something from her.

Zavala did have a law-and-order bent, though, as she saw the police while taking trash out to the Dumpster and told them the man they were looking for was inside her apartment. After returning inside, she then opened the front door for the authorities.

Realizing the cops were hot on his tail, Devitt first hid under the kitchen table — though how on earth do you realistically do that? — before making a dash to the bathroom. But after entering the apartment, the police quickly found and arrested him.

Devitt was later prosecuted in Spokane County Superior Court for three offenses: residential burglary, obstructing a law enforcement officer and resisting arrest. The obstructing charge was based on Devitt's conduct of running from the police to avoid capture and hiding inside Zavala's apartment. (Wonder what happened to the car theft violation? Me, too.)

Under Washington law, residential burglary is defined as entering a dwelling “with intent to commit a crime against a person or property therein.” Thus, in order to convict Devitt of this crime, the state had to prove two elements: (1) that he unlawfully entered Zavala's apartment; and (2) that he did so intending to commit a crime against a person or property “therein.”

When the case went to trial, Devitt moved to dismiss the burglary charge after the state rested its case. The prosecution had failed to prove the second element, said the defendant, by not showing that he entered Zavala's apartment with the requisite intent to commit any crime therein. The trial court denied his motion, however, and Devitt was later found guilty of all three charges.

The ensuing appeal only involved the felony burglary conviction, which by far was the most serious offense.

To cut to the chase, a Washington appeals court recently agreed that the burglary conviction should be reversed.

For one thing, the court agreed with Devitt that obstructing a law enforcement officer is a public crime — i.e., a crime against the government — and not a crime against person or property.

The court also focused on the “therein” requirement in the residential burglary statute.

The statute, said the court, requires more than a “simple showing of an intent to commit a crime.” Put differently, even if Devitt entered the apartment intending to obstruct a law enforcement officer, that didn't mean he also intended to harm any occupant (crime against person) or harm any belongings (crime against property).

So yes, to its chagrin, “therein” laid the problem for the state. And as a consequence, a happy Devitt won't be serving nearly so much time behind bars.