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Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                     FILED

                                                                 APR 19, 2012

                                                           In the Office of the Clerk of Court
                                                        WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                      No.  29528-1-III
                                                )
                             Respondent,        )
                                                )         Division Three 
         v.                                     )
                                                )
GARY ALAN SHAW,                                 )
                                                )         UNPUBLISHED OPINION
                             Appellant.         )
                                                )

       Sweeney, J.  --  Gary Alan Shaw appeals his conviction for second degree burglary

as either an accomplice or a principal.  We hold that there was sufficient evidence to 

support the conviction and affirm. 

                                            FACTS

       An alarm went off at the Benton County Rural Electric Association (REA) yard in 

Prosser, Washington, at 2:57 am and 40 seconds on August 11, 2010.  Police responded 

by 3:00 am.  The facility is located only two blocks from the Prosser Police Station.

Several spools of copper wire had been moved from a storage location in the REA yard to 

a site where a hole had been cut in a fence that enclosed the yard. There were three large  

No. 29528-1-III
State v. Shaw

spools, one of which had some wire off of it, and several smaller "hand coils."  Report of 

Proceedings (RP) at 28-29. The full wire spools are heavy, weighing about 300 pounds.  

They are difficult to lift but can be rolled by one person.  It took an REA employee about 

10 minutes to roll the wire spools back to where they were originally stored.  

       Prosser Police Officer Michael Buck responded to the alarm call. Detective 

Sergeant Edward Blackburn of the same department met him at the REA yard. They saw 

two males walking next to the fence.  Sergeant Blackburn stopped Roger Engel near a 

loading dock, cuffed him, and put him in the back of a patrol car. They found a cable 

cutter in the bed of the truck that Mr. Engel had directed them to.

       Benton County Deputy Sheriff Scott Monds also responded. He and Sergeant 

Blackburn found Gary Shaw hiding under the loading dock near where the officers had 

seen the two men walking. The dock is adjacent to an alleyway between the fenced 

Benton County REA yard and a video store; the loading dock is part of the adjacent video 

store.  Sergeant Blackburn then conducted a "sweep" of the REA yard.  He found a loose 

window screen and a foot print on what he described as a "heat exchanger." RP at 58.  

He looked at the print, photographed it, and compared it to both Mr. Engel's shoes and 

Mr. Shaw's shoes.  The pattern was similar to the pattern of Mr. Shaw's shoe.  He also 

saw, during his sweep, that copper wire was stacked near where the fence to the yard had 

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State v. Shaw

been cut open.  Some of the wire had been stacked on a four wheel cart and moved from 

where it was stored in the yard to the opening cut in the fence. 

       Mr. Engel said that he and Mr. Shaw were looking to steal (siphon) gas.  The REA 

yard is about a mile and a half from the Interstate. And there is gas available at the 

Interstate exit and "plenty of dark areas around that area at that time of day." RP at 83.  

       The State charged Mr. Shaw with second degree burglary.  He waived his right to 

a jury and the matter proceeded to a bench trial.  The court heard from the investigating 

officers, the REA employee who came to the scene, and the security company who 

received and responded to the alarm.  Mr. Shaw moved to dismiss for insufficient 

evidence at the close of the State's case. The court denied those motions.  Mr. Shaw 

called Mr. Engel. Mr. Engel testified that he alone was responsible for the burglary and 

that Mr. Shaw never went inside the fenced yard.  The judge found Mr. Shaw guilty of 

second degree burglary both as an accomplice and a principal and entered appropriate 

findings of fact and conclusions of law.

                                        DISCUSSION

       Mr. Shaw assigns error to the court's essential findings of fact.  He contends that 

the evidence is insufficient to support the court's findings that it would have been 

impossible for Mr. Engel to move the copper wire by himself or that the shoe print found 

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No. 29528-1-III
State v. Shaw

inside the REA yard was his.  Mr. Shaw contends that any remaining findings of fact do 

not support the conclusion of law that he was present on the scene and ready to assist in 

this burglary. 

       We review this record to determine whether substantial evidence supports the 

court's essential findings of fact.  State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 

(1980).  We must view the evidence in a light most favorable to the State.  Id. When so 

viewed, we then must decide whether any rational trier of fact could have found the 

essential elements of the crime of second degree burglary.  Id.  This standard is modest.  

We review the judge's decision to admit and consider physical evidence for abuse of 

discretion.  State v. Strandy, 49 Wn. App. 537, 543, 745 P.2d 43 (1987).  

Elements of the Crime

       A person is guilty of burglary in the second degree if, with intent to commit a 

crime against a person or property therein, he enters or remains unlawfully in a building 

other than a vehicle or a dwelling. RCW 9A.52.030(1).  And a building is now defined to 

include a fenced area: "'Building' . . . includes any . . . fenced area." RCW 

9A.04.110(5). 

       Also, the court could convict Mr. Shaw as an accomplice despite the information 

here that charged him as a principal.  State v. Rodriguez, 78 Wn. App. 769, 774, 898 P.2d 

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State v. Shaw

871 (1995).  Mr. Shaw acted as an accomplice if he "(a) [w]ith knowledge that it will 

promote or facilitate the commission of the crime, he (i) solicits, commands, encourages, 

or requests such other person to commit it; or (ii) aids or agrees to aid such other person 

in planning or committing it." Former RCW 9A.08.020(3)(a) (1975). The State need 

only show general knowledge of a crime; specific knowledge of every element of the 

principal's crime is not necessary. State v. Sweet, 138 Wn.2d 466, 479, 980 P.2d 1223 

(1999).  And circumstantial evidence is as probative as direct evidence.  State v. Clay, 

144 Wn. App. 894, 898, 184 P.3d 674 (2008). 

Findings and Conclusions

       Here, the court found that: 

   ?   The alarm for the Benton REA went off at 2:57 am on the morning of August 11, 
       2010.  Clerk's Papers (CP) at 21 (Finding of Fact (FF) 1).
   ?   Police arrived within 5 minutes and saw two people "walking towards 7th Street 
       [next to the REA yard]." CP at 21 (FF 3).
   ?   Police found Mr. Shaw hiding under the loading dock of a store next to the REA 
       yard.  CP at 21-22 (FF 5).
   ?   Police found a shoe print on a heat pump underneath a window screen that was 
       similar to the shoes worn by Mr. Shaw.  CP at 22 (FF 6, 7).
   ?   It took an REA employee 10 minutes working by himself to move the rolls of wire 
       back.  CP at 22 (FF 8).
   ?   Mr. Engel testified that he and Mr. Shaw were looking for a place to siphon gas 
       and that Mr. Shaw did not enter the REA yard.  Mr. Engel is a convicted burglar.  
       The court did not believe Mr. Engel's testimony because he is a convicted burglar, 
       there were other places closer to the Interstate where the two men could have 
       siphoned gas, and it would have been impossible for Mr. Engel to move the copper 
       wire by himself.  CP at 22 (FF 10-14).

       The evidence outlined above easily 

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State v. Shaw

supports these findings of fact, especially when viewed in a light most favorable to the 

State. Green, 94 Wn.2d at 221-22.  Both men were traveling together.  Two men were 

seen walking in the early morning hours near the REA yard.  The fence had been cut.

Police captured Mr. Engel and found Mr. Shaw in the immediate vicinity hiding under a 

loading dock. Police found a shoe print similar to Mr. Shaw's in the REA yard under the 

site where a screen had been removed.  

       The court concluded from these facts that:

   ?   Mr. Shaw was present and ready to assist Mr. Engel.  CP at 22 (Conclusion of 
       Law (CL) 15).
   ?   Mr. Shaw was inside the Benton REA yard on August 11, 2010.  CP at 22 (CL 
       17).

       The findings easily support those conclusions.  

Shoe Print Evidence

       The evidence at issue here was the shoe print found on the heat pump underneath a 

window in the REA yard.  Mr. Shaw maintains the court found that he did not enter the 

fenced-in compound.  Br. of Appellant at 9; RP at 112.  And while the court did say that 

he did not enter the yard, the ultimate finding is just the opposite: "Circumstantial 

evidence indicates that the defendant was inside the Benton REA yard on August 11, 

2010, including the shoe prints similar to the defendant's shoes, the impossibility of Mr. 

Engel moving the wire by himself in under 5 minutes, and the defendant being found on 

the scene." CP at 22 (CL 17).  And it is 

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No. 29528-1-III
State v. Shaw

those findings and conclusions that count, not the court's earlier musing on the record at 

the end of the trial.  State v. Mallory, 69 Wn.2d 532, 533, 419 P.2d 324 (1966).  

       Mr. Shaw filed a statement of additional grounds which merely supplements 

appellate counsel's brief and needs no separate consideration.  We then affirm the 

conviction for second degree burglary. 

       A majority of the panel has determined that this opinion will not be printed in the 

Washington Appellate Reports but it will be filed for public record pursuant to 

RCW 2.06.040.

                                                    _______________________________
                                                    Sweeney, J.
WE CONCUR:

________________________________
Korsmo, C.J.

________________________________
Brown, J.

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