* State Of Washington, Respondent V. Generous Sony, Appellant

NOTICE: SLIP OPINION
(not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the
written opinions that are originally filed by the court.
A slip opinion is not necessarily the court’s final written decision. Slip opinions
can be changed by subsequent court orders. For example, a court may issue an
order making substantive changes to a slip opinion or publishing for precedential
purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits
(for style, grammar, citation, format, punctuation, etc.) are made before the
opinions that have precedential value are published in the official reports of court
decisions: the Washington Reports 2d and the Washington Appellate Reports. An
opinion in the official reports replaces the slip opinion as the official opinion of
the court.
The slip opinion that begins on the next page is for a published opinion, and it
has since been revised for publication in the printed official reports. The official
text of the court’s opinion is found in the advance sheets and the bound volumes
of the official reports. Also, an electronic version (intended to mirror the
language found in the official reports) of the revised opinion can be found, free of
charge, at this website: https://www.lexisnexis.com/clients/wareports.
For more information about precedential (published) opinions, nonprecedential
(unpublished) opinions, slip opinions, and the official reports, see
https://www.courts.wa.gov/opinions and the information that is linked there.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON ,
Respondent,
v.
GENEROUS SONY,
Appellant.
No. 70769-8-1 	£?, 	co<
DIVISION ONE 	S 	;:•;
PUBLISHED OPINION 	-1 	:$
FILED: November 17, 201^
en
Appelwick, J. 	- 	Sony appeals 	his 	conviction for 	residential 	burglary. 	He
argues that 	he 	was 	denied 	the 	right to 	a 	unanimous jury verdict 	because the
evidence was insufficient to support one of the alternative means of committing the
crime. 	Because residential burglary is not an alternative means crime in the way
Sony suggests, we affirm.
FACTS
On the evening of March 31, 2013, Ashley Gicewicz was doing laundry in the
laundry room down the hall from the apartment she shared with her boyfriend, Juan
Parrondo. 	When Gicewicz finished and returned to the apartment, she neglected to
lock the door. 	Gicewicz placed the quarters left over from the laundry on the kitchen
counter and went to sleep in the bedroom with the couple's three children. 	Parrondo
fell asleep on the couch watching television.
Around 3:00 a.m., Gicewicz awoke and saw Sony in her bedroom. 	Sony left
the bedroom and returned three times, saying that he "was sorry," that he "was
policia," and that he "believes in God." 	Sony asked Gicewicz to give him her hand.
Gicewicz was scared and did not want to wake her children so she buried her face in
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70769-8-1/2
the mattress and hoped Sony would leave. 	She heard Sony go into the kitchen,
where she heard what sounded like coins falling on the floor.
Parrondo awoke to the noise in the kitchen. 	He went into the kitchen and saw
Sony. 	Sony ran out of the apartment and tried to hold the door closed as Parrondo
struggled to open the door from the inside. 	Parrondo was eventually able to open the
door and 	chased 	Sony down 	the 	stairs from 	the third 	floor 	apartment. 	Police
discovered Sony hiding in some bushes on the other side of a chain-link fence that
bordered the apartment complex parking lot. 	Both Gicewicz and Parrondo identified
Sony as the man who had been in their apartment. 	Parrondo discovered that $440
was missing from his wallet, which he had left in the kitchen. 	Police searched Sony
and found exactly $440 on his person. 	Sony told police, "I'm sorry."
The State charged Sony with residential burglary, alleging that, on April 1,
2013, Sony "enter[ed] and remain[ed] unlawfully in the dwelling of Ashley Gicewicz
and Juan Parrondo . . . with intent to commit a crime against a person or property
therein."
At trial, Sony testified that on the evening in question he had been very tired
and 	very drunk. 	He testified 	that 	he 	did 	not remember entering 	Gicewicz and
Parrondo's apartment or taking any money.
The trial court instructed the jury that to find Sony guilty of residential burglary,
the State was 	required to 	prove that Sony entered 	or 	remained 	unlawfully in a
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70769-8-1/3
dwelling "with intent to commit a crime against a person or property therein." The jury
returned a verdict convicting Sony of residential burglary. 	Sony appeals.
DISCUSSION
In Washington, criminal defendants have a constitutional right to a unanimous
jury verdict. 	Wash. Const, art. I, § 21, State v. Ortega-Martinez, 124 Wn.2d 702,
707, 881 P.2d 231 (1994). "This right may also include the right to a unanimous jury
determination as to the means by which the defendant committed the crime when the
defendant is charged with (and the jury is instructed on) an alternative means crime."
State v. Owens. 180 Wn.2d 90, 95, 323 P.3d 1030 (2014). 	An alternative means
crime sets forth "distinct acts that amount to the same crime." 	State v. Peterson, 168
Wn.2d 	763, 	770, 	230 	P.3d 	588 	(2010). 	"When 	a 	crime 	can 	be 	committed 	by
alternative means, express jury unanimity as to the means is not required where
each of the means is supported by substantial evidence." 	State v. Gonzales, 133
Wn. App. 236, 243, 148 P.3d 1046 (2006). 	However, if the evidence is insufficient to
support each of the means, a particularized expression of jury unanimity is required.
Ortega-Martinez, 124 Wn.2d at 707-08.
A person is guilty of residential burglary if, "with intent to commit a crime
against a person or property therein, the person enters or remains unlawfully in a
dwelling other than a vehicle." 	RCW 9A.52.025. 	Sony argues that "with intent to
commit a crime against a person" and "with intent to commit a crime against property"
are 	alternative 	means 	of 	committing 	residential 	burglary. 	He 	argues 	that 	his
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70769-8-1/4
constitutional right to a unanimous verdict was violated because (1) the State did not
elect a particular means and the trial court did not instruct the jury that it must reach
unanimous agreement as to the means, and (2) the evidence was insufficient to show
that he intended to commit a crime against a person.
While residential burglary is an alternative means crime, the alternative means
are not those that Sony suggests. 	"The analysis of whether the legislature intended
a crime to have alternative means of commission focuses on the act that constitutes
the offense." 	State v. Huvnh, 175 Wn. App. 896, 904, 307 P.3d 788, review denied,
179 Wn.2d 1007, 315 P.3d 531 (2013). 	There are two distinct physical acts that
amount to residential burglary: (1) unlawfully entering a building with intent to commit
a crime, or (2) unlawfully remaining in a building with intent to commit a crime. 	RCW
9A.2d.025. 	These 	constitute 	the 	alternative 	means 	of 	committing 	burglary.
Gonzales, 133 Wn. App. at 243. 	The different intents which may be present—"to
commit a crime against a person" or "to commit a crime against property"—are not
distinct 	acts 	and 	therefore 	do 	not 	constitute 	alternative 	means 	of 	committing
residential burglary. 	See Huvnh, 175 Wn. App. at 905-6 ("An element dealing with a
defendant's subjective mental state generally cannot be the subject of an alternative
means analysis."). 	Rather, "[t]he intent required by our burglary statutes is simply the
intent to 	commit any crime 	against a 	person 	or property inside the 	burglarized
premises." 	State v. Bergeron, 105 Wn.2d 1, 4, 711 P.2d 1000 (1985). 	The "specific
crime or crimes intended to 	be committed inside burglarized premises is not an
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70769-8-1/5
burglary that must be included in the information, jury instructions^] orin 	the trial
court's findings and conclusions." 	Id.
Sony's reliance on State v. Tresenriter, 101 Wn. App. 486, 4 P.3d 145 (2000)
is misplaced. 	In Tresenriter, the information narrowly charged that the defendant
entered or remained 	unlawfully with "'intent to commit a 	crime against a person
therein,'" but the jury was instructed that they had to find the defendant entered or
remained unlawfully "'with the intent to commit a crime against a person or property
therein.'" 	jd. 	Division Two of this court reversed the defendant's conviction, holding
the charging document was constitutionally defective, 	jd. at 492. 	In explanation, it
stated, "The State, by not charging the alternative means of committing a burglary,
i.e., with intent to commit a crime against property, did not provide Tresenriter with
the necessary notice." 	Id. 	But, the issue presented in Tresenriter was whether the
charging document satisfied due process, 	jd. at 491. 	In addressing the issue, the
court accepted the defendant's characterization of "intent to commit a crime against a
person" as an alternative means without analysis. 	The statement upon which Sony
relies is dicta, and we decline to adopt it.1
Because Sony has failed 	to establish that "with 	intent to commit a 	crime
against a person" and "with intent to commit a crime against property" are alternative
1 We note that Division Two, in an unpublished opinion, has since clarified its holding in
Tresenriter, stating that it "did not intend to imply a reading of the burglary statute that would
create alternative means of commission based solely on differing intents." State v. Pierce,
noted at 135 Wn. App. 1014, 2006 WL 2924475, at *6.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 70769-8-1/6
means of committing residential burglary, Sony's right to a unanimous verdict was not
violated. We affirm.
cd*
-ft
WE CONCUR:
WJXul H2fls