State Of Washington v. Chad Bruce Olson ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 69537-1-1
Respondent, DIVISION ONE
v.
PUBLISHED OPINION
CHAD BRUCE OLSON,
Appellant. FILED: July 7, 2014
Schindler, J. — Chad Bruce Olson appeals his conviction of residential burglary
in violation of RCW 9A.52.025. Olson claims his attorney provided ineffective
assistance of counsel by failing to request a jury instruction on the defense of
abandonment. Because abandonment is not a defense to the crime of residential
burglary, we affirm.
FACTS
Jane Roberts and her husband lived together in the house they owned in Auburn
at 38003 43rd Avenue South for nearly 37 years. Approximately six years after her
husband died in "the late '80s," Roberts went to live near her sister in Puyallup. Roberts
continued to own the Auburn house and for many years, Roberts hired a yard service to
maintain the yard. Roberts kept many of her belongings at the house, as well as in a
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workshop area inside the carport and in a freestanding, padlocked shed adjacent to the
carport. Roberts also kept her black BMW convertible in the carport.
In 2011, Roberts' neighbors Karen Everett and Harvey McClung notified Roberts
and called the police to report "kids had been breaking into the house" and a female and
a male leaving the house. In late August or early September, McClung called 911 to
report seeing a man and a woman drive away in Roberts' BMW.
King County Sheriff Deputy Denny Gulla testified that he responded to the
reports of "people breaking into the house, taking property and a car from that house,"
and "tracked down the owner of the home." In September, Deputy Gulla began to
routinely check on Robert's house at least once, if not twice, a day. Deputy Gulla
testified, in pertinent part:
I had been consistently checking the house to make sure it wasn't
being continually burglarized or items being taken from the
property.
Q Why were you doing that?
A Because the—the victim in this case did not live on that property,
and she was elderly, and people were coming, removing her
property without permission, and so we made an effort to—to check
on the property and make sure that there wasn't any further loss of
her property.
On October 11, Deputy Gulla walked around the entire property. Deputy Gulla
testified the sliding glass door to the house was closed and locked, the doors to the
workshop area were closed and locked, and the doors of the shed were "closed and
padlocked."
At around 9:00 a.m. the following morning, next-door neighbor Karen Everett
"saw a little silver pickup pulled—or, backed all the way into [Roberts'] roadway. And I
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saw a gentleman there getting things out and putting things in his truck, and I said,
okay, that doesn't look right." Everett called 911.
Shortly after her 911 call, neighbor Harvey McClung called 911 to report
someone "unloading stuff out of a shed" and putting it "in a pickup truck [that was] full,
from the best [he] could tell." McClung testified that the "backside of our property has a
dog pen. And along that dog pen at the backside of the property there was four-foot
high pieces of plywood. And you could see the top of a loaded pickup back there. And
that's when I figured something's wrong."
Deputy Gulla arrived at the house approximately 10 minutes after the first 911
call. Deputy David Jeffries arrived shortly thereafter. Deputy Gulla and Deputy Jeffries
saw a silver pickup truck backed up to the front of the storage shed and a tarp strung up
to block the view from the street.
Deputy Gulla and Deputy Jeffries approached a man, later identified as Chad
Bruce Olson, while he was "walking from the storage shed, carrying some items" to the
pickup truck. The shed doors were open and there was property on the ground near the
shed that had not been there the day before. Deputy Gulla said that "[t]here were a lot
of things in the truck. The cab of the truck was filled full of various property, and the bed
of the truck was nearly overflowing with property." Deputy Jefferies said there was a
brass bedframe in the back of the truck. Deputy Gulla testified the brass bedframe had
not been outside the day before.
Deputy Gulla testified that the rear sliding door to the house was "open about a
foot, and there were some footprints on the inside of the entryway," and the "doorframe
to the workshop area—the door had been forced open, and the frame was split and
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broken." Inside the house, there were "fresh" footprints on the floor in "some type of
sticky liquid." Deputy Gulla testified that the sole of the sneakers Olson wore matched
the pattern of the footprints on the floor.
Olson said he told Deputy Gulla that he had permission from the owner to
remove the property and showed the deputies a handwritten note. The note reads:
To Whom it may Concern
9-30-11
I Jane Roberts give full permission to Chad Olson &Tim Giseler to clean
up my property and my things I no longer want, they have 3 weeks to
clean up the whole property inside and out.
253-527-1129
38003 43rd Ave. S.
Auburn, WA, 98001 signed 9-30-11
f/s/1 Jane A. Roberts
According to Deputy Gulla, Olson said that he "met [Roberts] at Dave's bar,
which is in [the] Edgewood area, and she asked him to clean up her property, that she
wrote him the note, and that she had moved to Mexico." Olson described Roberts "as
about 67 years old . . . with blonde hair."
After Deputy Gulla contacted Roberts, he arrested Olson. Deputy Gulla said that
while he was in the patrol car writing his report, Olson "looked over my shoulderand
was reading the [computer] screen. And he .. . said, oh, she actually lives in Puyallup."
Olson also said that "it wasn't a burglary because he never went in the house."
The State charged Olson with residential burglary. At the beginning oftrial, the
defense attorney stated Olson planned to request jury instructions on the lesser
included crimes of burglary in the second degree and criminal trespass.
During the three-day jury trial, the State presented the testimony of Deputy Gulla,
Deputy Jeffries, Deputy Neil Woodruff, Roberts, and her neighbors McClung and
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Everett. The court admitted into evidence the sneakers Olson wore and photographs of
the footprints found in the house.
Roberts testified she owns the Auburn house and she kept her belongings in the
house and the locked shed. Roberts described going to her house on October 12 with
Deputy Woodruff. Roberts said, "Everything was scattered around, and things broken
and things missing," and she felt "[d]egraded[,] like my identity had been taken and part
of my life gone." Roberts testified that the items in the pickup truck were taken from the
shed and her house. Roberts said that she did not give Olson permission to go onto her
property or go into the house or shed, or to take any property from the house or shed.
Deputy Woodruff testified when he took Roberts to her house on October 12, she
was in "shock" and "had a hard time even standing. She needed me to help her stand.
So, I braced her with my arm. She was almost throwing up. She was crying. She was
distraught about what she had seen. It was pretty . . . moving for her." Deputy
Woodruff said that Roberts told him "the brass bedframe had been in the house prior to
her last visit."
Olson testified he owns a yard cleanup and recycling business called "Iron House
Boys." Olson testified he has a business account with Tacoma Metals for recycling
aluminum, copper, brass, nickel, titanium, platinum, and zinc. Olson said that he posted
his business card and a flyer at Dave's Restaurant in Milton, Washington.
Olson said that he had permission to remove items from Roberts' property.
Olson testified that on September 30, a woman and two other men approached him
while he was at Dave's Restaurant and asked him if he was the owner of Iron House
Boys. Olson said that "the woman asked me if I could do some yard cleanup for her."
No. 69537-1-1/6
Olson said that he asked the woman to write a note authorizing him to clean up the
property and take "things I no longer want." Olson testified, in pertinent part:
So, I said, well, is it local; is it far away? Because I—I need to know how far
away it is from where I live so I could guesstimate. She said it's, uh, right
over here by Five Mile Lake area. If you guys know where that is, it's in
Federal Way. I said, well, yeah, what's the address. So, uhm, I wrote up
this plan. I went out to my truck, got my binder, wrote up this—this, uh—
this note here, and she gave me the address and she wrote down this
phone number and she signed it.
Olson testified that he asked the woman if there were "any appliances or any
metal products and she said, yes, it just needs to be cleaned up, and I said, okay, I'll do
it." The court admitted into evidence a copy of the note Olson said that he gave to the
officers before his arrest. Olson testified that the woman was "kind of heavyset[,] about
62 years old[,] well-dressed [with] dark hair, kind of curly." But Olson admitted the
woman he talked to at Dave's Restaurant was not the Jane Roberts who testified in
court.
Olson said that he did a "thorough inspection of the whole property" before
starting in the shed "because the doors were open." Olson also testified that the sliding
door of the house was open and he did not go into the house, but that he planned to go
into the house because "I had permission."
On cross-examination, Olson admitted that he was convicted of forgery in 2004,
theft in 2005, and trafficking in stolen property in 2006. Olson also admitted that in
2006, he did not have permission from the owner to remove and sell the metal siding of
a mobile home.
In rebuttal, Deputy Joseph Eshom testified about the 2006 investigation of Olson
for trafficking in stolen property. Deputy Eshom said that by the time he arrived at the
No. 69537-1-1/7
property owned by Melvin Couture, Olson had stripped most of the metal siding off
Couture's mobile home and loaded the metal into his pickup truck. Deputy Eshom
testified that Olson told him "the owner of the property gave him permission to clean the
property up," and "the owner had given him permission to be on the property and to take
the items." Deputy Eshom said Couture told him that he did not give Olson "permission
to clean up or take anything off the property."
The court instructed the jury that to convict Olson of the crime of residential
burglary, the State must prove beyond a reasonable doubt that he "entered or remained
unlawfully in a dwelling" with the intent to commit a crime against "a person or property
therein." The jury instructions defined "a dwelling" as "any building or structure which is
used or ordinarily used by a person for lodging." The court also instructed the jury that
"[a] person enters or remains unlawfully in or upon premises when he or she is not then
licensed, invited, or otherwise privileged to so enter or remain."
At the request of the defense, the court also instructed the jury on the lesser
included crimes of burglary in the second degree, criminal trespass in the first degree,
and criminal trespass in the second degree, as well as the statutory defenses to criminal
trespass in the first degree and criminal trespass in the second degree. Jury instruction
20 states:
It is a defense to a charge of Criminal Trespass in the First
Degree that:
A building involved in the trespass was abandoned, or the
defendant reasonably believed that the owner of the
premises or other person empowered to license access to
the premises would have licensed the defendant to enter or
remain.
The State has the burden of proving beyond a reasonable doubt
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that the trespass was not lawful. Ifyou find that the State has not proved
the absence of this defense beyond a reasonable doubt, it will be your
duty to return a verdict of not guilty.[1]
Jury instruction 24 states:
It is a defense to a charge of Criminal Trespass in the Second
Degree that:
The defendant reasonably believed that the owner of the
premises or other person empowered to license access to
the premises would have licensed the defendant to enter or
remain.
The State has the burden of proving beyond a reasonable doubt
that the trespass was not lawful. If you find that the State has not proved
the absence of this defense beyond a reasonable doubt, it will be your
duty to return a verdict of not guilty.[2J
During closing, the State argued the evidence established Olson committed the
crime of residential burglary. The prosecutor pointed to the testimony that established
the sliding glass door was locked the day before and the distinctive footprints Deputy
Gulla found in the house that matched the shoes Olson wore. The prosecutor argued,
in pertinent part:
And, in this case we have the evidence that Mr. Olson, in fact,
entered into that house. We have the sliding door off the carport that was
open when officers arrived and found him there. Deputy Gulla testified
that he'd been there the morning before, and that sliding glass door was
[not] open.
Inside the door on the ground you heard about the footprints,
footprints that happened to match—well, not happened, but did match the
shoes that were recovered from the Defendant's feet. He admitted to you
that those were his shoes; that they were size 12 Filas, and Deputy Gulla
pointed to you to the distinctive wavy pattern on the sole of the shoe,
which you can see to a certain extent it's not a great photograph in the
brown, sticky, liquid or dog feces as it may be where they were preserved.
But.. . Deputy Gulla, himself, testified that seen in person it was even
more clear that this was the footprint of the Defendant's shoes inside the
residence.
1 Emphasis in original.
2 Emphasis in original.
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No. 69537-1-1/9
The prosecutor also pointed to the testimony that the brass bedframe in the
pickup truck had been in the house. The prosecutor argued, in pertinent part:
We also know that he went into the residence because you've
heard what the victim, Jane Roberts, said. At the time she came to the
house that brass bedframe that was in the back of the truck was actually
on the ground at that point. And, she pointed to that as Deputy . ..
Woodruff told you, and said that bedframe was inside the house. Well, it's
not inside the house anymore; it's out on the truck. And, logic tells you
that the only way that it could have gotten there is if somebody went into
the house and got it. Not someone; the only someone who was there was
the Defendant, Chad Olson.
The prosecutor asserted Olson's testimony that he had permission to remove
Roberts' belongings was not credible.
The State would suggest to you that in that regard this question—
this case really comes down to do you—do you believe Mr. Olson's story
or not? If you believe his story, he had permission to be on the property,
or at least thought he did, and he didn't have intent to commit a crime. He
didn't have intent to steal because he thought he had permission—he had
permission to take what it was he was taking. If you don't believe his
story, then he's guilty because there is no permission for him to be there,
and what he's doing is clearly stealing.
The defense argued that Olson believed he had permission from the owner to
remove the property he loaded into his pickup truck. The defense claimed there was no
evidence Olson ever entered the residence because Olson testified all the items in the
truck except for the brass bedframe came from the shed, and there was no evidence
that established when the bedframe was last in the house. The defense also argued
that the State did not prove beyond a reasonable doubt that the shoeprints found in the
house matched the soles of the shoes Olson wore.
No. 69537-1-1/10
As to the lesser included crimes of criminal trespass, defense counsel argued
that not only did Olson have permission, but the house was abandoned. Defense
counsel argued, in pertinent part:
Criminal Trespass in the First Degree and Second Degree . .. was
if the building was abandoned. That's a defense. If the Defendant
reasonably believed that the owner would have given him permission to
go onto the property, that's a defense. What isn't defined for you, which
means you have to use your commonsense and perception, what does
abandoned mean? Is it not abandoned because Mrs. Roberts still calls it
home? Is that good enough? Or if we have independent evidence from
other witnesses that no one has lived there since the early '80s or early
'90s, that it's been ransacked multiple times ....
Mrs. Roberts will never ever say she abandoned her house. And
we know that. But it's our commonsense, our collective definition. And
under that, it was abandoned. Det. Woodruff said abandoned. The house
was disgusting; no water, it stunk of human waste. That's abandoned.
Holes in the wall, furniture torn apart. I can't remember which one, but
one of them said it looked like a house that someone had just walked
away from. That means abandoned.
In rebuttal, the prosecutor asserted that while abandonment is a defense to
criminal trespass, it is not a defense to residential burglary.
[I]n this particular case, the question of whether this house is abandoned
or not is a red herring, because if you look at the instructions, the jury
instructions that you were given, what you will find is that the question of
whether the house was abandoned is a defense to Criminal Trespassing.
There's no instruction, because it's not in the case, that the question of
whether it was abandoned is not a defense to Burglary.
So, yes, you can find if you want to that this house is abandoned
within the meaning [defense counsels talking about and still find the
Defendant—and you should still find the Defendant—guilty of Residential
Burglary, because as the definition of dwelling told you, it's what is the
building being used for? What is it ordinarily used for? Not what particular
usage is it being put to at one particular point in time. This is a house; it's
a dwelling. And the fact that it may or may not have been, quote, unquote,
"abandoned," as you understand that word, isn't a defense to that charge.
The jury found Olson guilty of residential burglary. The court imposed a
standard-range sentence of 75 months. Olson appeals.
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No. 69537-1-1/11
ANALYSIS
Olson claims his attorney provided ineffective assistance of counsel by failing to
request a jury instruction on abandonment of a building as a defense to the crime of
residential burglary.3 To establish ineffective assistance based on counsel's failure to
request a jury instruction, the defendant must show that he was entitled to the
instruction. State v. Cienfueaos. 144 Wash. 2d 222, 227, 25 P.3d 1011 (2001); State v.
Johnston. 143 Wash. App. 1, 21, 177 P.3d 1127 (2007). Whether abandonment is a
defense to residential burglary is a question of law that we review de novo. State v.
Gonzalez. 168 Wash. 2d 256, 263, 226 P.3d 131 (2010).
The authority to define the elements of a crime "rests firmly with the legislature."
State v. Torres Ramos. 149 Wash. App. 266, 271, 202 P.3d 383 (2009); State v. Evans.
154 Wash. 2d 438, 447 n.2, 114 P.3d 627 (2005). Our goal in interpreting a statute is to
carry out the legislature's intent. Gonzalez, 168 Wash. 2d at 263. The court must give
effect to the plain language of an unambiguous statute. See State v. Bunker. 169
Wash. 2d 571, 577-78, 238 P.3d 487 (2010); Gonzalez, 168 Wash. 2d at 263; State v.
Jacobs. 154 Wash. 2d 596, 600-01, 115 P.3d 281 (2005). Ifthe plain language of the
statute is unambiguous, this court's inquiry is at an end and we enforce the statute "in
accordance with its plain meaning." State v. Armendariz, 160 Wash. 2d 106, 110, 156
P.3d 201 (2007).
The legislature divided the crime of burglary into three felonies: (1) RCW
9A.52.020, burglary in the first degree, a class A felony; (2) RCW 9A.52.025, residential
3 Based on the premise that abandonment is a defense to residential burglary, Olson also argues
insufficient evidence supports his conviction.
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No. 69537-1-1/12
burglary, a class B felony; and (3) RCW 9A.52.030, burglary in the second degree, a
class B felony.
A person commits the crime of burglary in the first degree if the person, with the
intent to commit a crime against a person or property, enters or remains unlawfully in a
building, and while in the building or in flight therefrom, is armed with a deadly weapon
or assaults a person. RCW 9A.52.020(1). A person is guilty of burglary in the second
degree if he or she enters or remains unlawfully in a building "other than ... a dwelling"
with intent to commit a crime therein. RCW 9A.52.030(1).
A person is guilty of residential burglary if, "with intent to commit a crime against
a person or property therein," he or she enters or remains unlawfully in a "dwelling."
RCW 9A.52.025(1). A person "enters or remains unlawfully" when he or she is not
licensed, invited, or otherwise privileged to enter or remain. RCW 9A.52.010(5).
Criminal trespass in the first degree is a lesser included offense of burglary in the
second degree. State v. Soto, 45 Wash. App. 839, 840-41, 727 P.2d 999 (1986) (holding
burglary in the second degree includes criminal trespass in the first degree). A person
is guilty of criminal trespass in the first degree if he or she knowingly enters or remains
unlawfully in a building. RCW 9A.52.070(1). Criminal trespass in the first degree is a
gross misdemeanor. RCW 9A.52.070(2). Criminal trespass in the second degree is a
lesser included crime of criminal trespass in the first degree. A person is guilty of
criminal trespass in the second degree if he or she knowingly enters or remains
"unlawfully in or upon premises of another under circumstances not constituting criminal
trespass in the first degree." RCW 9A.52.080(1). Criminal trespass in the second
degree is a misdemeanor. RCW 9A.52.080(2).
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No. 69537-1-1/13
The legislature enacted statutory defenses for the crimes of criminal trespass in
the first degree and criminal trespass in the second degree. RCW 9A.52.090. RCW
9A.52.090 provides, in pertinent part:
Criminal trespass—Defenses. In any prosecution under RCW
9A.52.070 [(criminal trespass in the first degree)] and 9A.52.080 [(criminal
trespass in the second degree)], it is a defense that:
(1) A building involved in an offense under RCW 9A.52.070 was
abandoned; or
(2) The premises were at the time open to members of the public
and the actor complied with all lawful conditions imposed on access to or
remaining in the premises; or
(3) The actor reasonably believed that the owner of the premises,
or other person empowered to license access thereto, would have
licensed him or her to enter or remain.[4]
In City of Bremerton v. Widell, 146 Wash. 2d 561, 51 P.3d 733 (2002), our supreme
court held that because the statutory defenses to criminal trespass negate the unlawful
presence element of the crime of criminal trespass, the statutory defenses are not
affirmative defenses. Widell, 146 Wash. 2d at 570. The court also held that when the
defendant asserts he had permission, the State must prove the absence of that
defense. Widell, 146 Wash. 2d at 570. In Widell, the court held, in pertinent part:
Statutory defenses to criminal trespass negate the unlawful presence
element of criminal trespass and are therefore not affirmative defenses.
. . . Further, the burden is on the State to prove the absence of the
defense when a defendant asserts his or her entry was permissible under
RCW 9A.52.090(2) because that defense "negates the requirement for
criminal trespass that the entry be unlawful." State v. Finlev, 97 Wash. App.
129, 138, 982 P.2d 681 (1999). Thus, once a defendant has offered some
evidence that his or her entry was permissible under RCW 9A.52.090, the
State bears the burden to prove beyond a reasonable doubt that the
defendant lacked license to enter.
Widell, 146Wn.2dat570.
Emphasis in original.
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No. 69537-1-1/14
Olson relies on the Division Three decision in State v. J.P.. 130 Wash. App. 887,
125 P.3d 215 (2005), to argue that abandonment is a defense to residential burglary. In
J.P., J.P. was apprehended after he crawled out the window of a vacant home being
prepared for sale. The juvenile court found J.P. guilty of residential burglary. J.P., 130
Wash. App. at 890-91. On appeal, J.P. argued that the statutory defense of abandonment
was a defense to residential burglary. JP^, 130 Wash. App. at 894. Relying on Widell.
the court held that J.P. could assert abandonment as a defense to residential burglary.
J.P.. 130 Wash. App. at 895. The court concluded that because residential burglary
required proof of unlawful entry or presence, the defense of abandonment could negate
the unlawful entry or presence element of the crime. J.P., 130 Wash. App. at 895.
Nonetheless, because sufficient evidence supported the conclusion that the vacant
house was not abandoned, the court affirmed. J.P., 130 Wash. App. at 896.
In State v. Jensen. 149 Wash. App. 393, 203 P.3d 393 (2009), Division Two
disagreed with the analysis and conclusion in J.P. that abandonment is a defense to the
crime of residential burglary. Jensen, 149 Wash. App. at 400-01. In Jensen, a jury found
Jensen guilty of burglary in the second degree. Jensen, 149 Wash. App. at 397. On
appeal, Jensen argued he was entitled to a jury instruction on abandonment as a
defense to the crime of burglary in the second degree. Jensen, 149 Wash. App. at 397-
98. The court held that under the plain and unambiguous language of the statute, the
defense of abandonment applies "only to prosecutions for first degree criminal trespass"
and abandonment is not a defense to burglary in the second degree. Jensen, 149 Wn.
App. at 400-01.
As with any other statute, where the language of a statutory defense is
clear, its plain language is to be applied as written. . . . Applying the
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No. 69537-1-1/15
statute as written, we hold that RCW 9A.52.090(1)'s abandonment
defense is not available regarding Jensen's charged offense of second
degree burglary.
Jensen, 149 Wash. App. at 401. The court expressly rejected the reliance of the court in
J.P. on Widell:
Widell held only that when a defendant sufficiently asserts one of the
statutory defenses to criminal trespass, the burden to disprove the
defense falls on the State. . . . Nothing in Widell suggests that expansion
of those statutory defenses to other crimes is warranted.
Jensen. 149 Wash. App. at 401.
We agree with the analysis in Jensen. Under the plain and unambiguous
language of the statute, the defense of abandonment applies only to the crime of
criminal trespass. The legislature did not provide the statutory defense of abandonment
as a defense to residential burglary, and the supreme court in Widell did not hold
otherwise. See State v. Frampton. 95 Wash. 2d 469, 477-78, 627 P.2d 922 (1981)
(presumption that legislature was aware of the state of the law); Chandlery. Otto, 103
Wash. 2d 268, 274, 693 P.2d 71 (1984) (stating courts presume legislature is aware of its
prior enactments).
The legislature enacted the new offense of residential burglary in 1989. Laws of
1989, ch. 412, § 1. Legislative history shows that consistent with the common law, the
crime of residential burglary was enacted in order to punish burglaries occurring in
dwellings more harshly "[i]n light of the steady increase in residential burglaries and the
potential for personal injury inherent in such crimes." Final B. Rep. on S.B. 5233, 51st
Leg., Reg. Sess. (Wash. 1989).
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No. 69537-1-1/16
Under the common law, "[b]urglary has always been regarded as a serious crime
because of the ancient notion that a man's home is his castle. When he closes his
door, he should be able to feel secure in his castle." 3 Charles E. Torcia, Wharton's
Criminal Law § 325, at 253 (15th ed. 1995). See also RCW 9A.04.060 (common law
supplements criminal statutes to the extent not inconsistent); State v. Byrd, 125 Wash. 2d
707, 712-13, 887 P.2d 396 (1995) (examining common law to construe undefined term
in criminal statute); State v. Wentz, 149 Wash. 2d 342, 356, 68 P.3d 282 (2003) (Madsen,
J., concurring) (common law burglary considered a " 'heinous offense'" because it
invaded the" 'right of habitation'") (quoting 2 Wayne R. UFave &Austin W. Scott, Jr.,
Substantive Criminal Law § 8.13(c) at 469 (1986 & Supp. 2003))).5
In addition, the record establishes a strategic reason not to request an instruction
on abandonment as a defense to residential burglary. In order to prevail on a claim of
ineffective assistance of counsel, Olson must demonstrate (1) deficient performance,
that his attorney's representation fell below the standard of reasonableness; and (2)
resulting prejudice, that but for the deficient performance, the result would have been
different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984); State v. Bowerman, 115 Wash. 2d 794, 808, 802 P.2d 116 (1990) (adopting
the standards in Strickland). If a defendant fails to establish either prong, we need not
inquire further. State v. Hendrickson, 129 Wash. 2d 61, 78, 917 P.2d 563 (1996).
5The out-of-state case Olson relies on, McKenzie v. State. 407 Md. 120, 962 A.2d 998 (2008), is
distinguishable. In McKenzie. the Maryland Court ofAppeals held thatan unoccupied apartment that is
suitable for occupancy is a "dwelling" for purposes of the burglary statute. McKenzie, 407 Md. at 134-35.
Here, unlike in McKenzie, Olson did not argue that Roberts' house is not a dwelling. See McKenzie, 407
Md. at 123.
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No. 69537-1-1/17
There is a strong presumption of effective representation of counsel, and the
defendant has the burden to show that based on the record, there are no legitimate
strategic or tactical reasons for the challenged conduct. State v. McFarland. 127 Wash. 2d
322, 335-36, 899 P.2d 1251 (1995). As the Supreme Court explained in Strickland:
Judicial scrutiny of counsel's performance must be highly
deferential. It is all too tempting for a defendant to second-guess
counsel's assistance after conviction or adverse sentence, and it is all too
easy for a court, examining counsel's defense after it has proved
unsuccessful, to conclude that a particular act or omission of counsel was
unreasonable. Cf. Enqle v. Isaac. 456 U.S. 107, 133-134[, 102 S. Ct.
1558, 71 L. Ed. 2d 783] (1982). A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from counsel's
perspective at the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action "might be considered sound trial
strategy." See Michel v. Louisiana. [350 U.S. 91, 101, 76 S. Ct. 158, 100
L.Ed. 83(1955)].
Strickland, 466 U.S. at 689.
Here, Olson told the deputies he had permission from the owner to remove the
property he had loaded into his pickup truck. Olson then gave the deputies a note from
"Jane A. Roberts" dated September 30, 2011 authorizing him to clean up and remove "my
things I no longer want." Olson also told Deputy Gulla that he did not commit residential
burglary because he never entered the house. At trial, Olson continued to insist that he
had permission to remove property. Olson also testified that he did not enter the house
on October 12, but was "going to . . . [bjecause I had permission." Because the record
17
No. 69537-1-1/18
establishes a clear, strategic reason to not request an abandonment instruction as a
defense to residential burglary, Olson's claim of ineffective assistance of counsel fails.6
We affirm.
\fS)^u\HQ.h
WE CONCUR:
s -j*^'
6 We also note Roberts' testimony established the house was not abandoned.
18