Supreme Court of the State of Washington 

Opinion Information Sheet

Docket Number: 81072-9
Title of Case: State v. Engel
File Date: 07/09/2009
Oral Argument Date: 03/26/2009

Appeal from King County Superior Court
Honorable James D Cayce

Gerry L. Alexander Signed Majority
Charles W. Johnson Signed Majority
Barbara A. Madsen Signed Majority
Richard B. Sanders Signed Majority
Tom Chambers Signed Majority
Susan Owens Signed Majority
Mary E. Fairhurst Signed Majority
James M. Johnson Majority Author
Debra L. Stephens Signed Majority


Counsel for Petitioner(s)
Vanessa Mi-jo Lee
Attorney at Law
1511 3rd Ave Ste 701
Seattle, WA, 98101-3647

Counsel for Respondent(s)
James Morrissey Whisman
King County Prosecutor's Office
W554 King County Courthouse
516 3rd Ave
Seattle, WA, 98104-2362

Prosecuting Atty King County
King Co Pros/App Unit Supervisor
W554 King County Courthouse
516 Third Avenue
Seattle, WA, 98104


) No. 81072-9
Respondent, )
) En Banc
v. )
) Filed July 9, 2009
Petitioner. )

J.M. JOHNSON, J. -- Roger Dean Engel stole some wheels from a large

private yard that was partially enclosed by a fence and partially bordered by

sloping terrain. Engel was convicted of burglary in the second degree, which

requires entering or remaining in a "building." RCW 9A.52.030. A "building"

is statutorily defined to include a "fenced area." RCW 9A.04.110(5). Engel

challenges the sufficiency of the evidence, claiming the yard was not a "fenced

State v. Engel, No. 81072-9

area" in the sense intended by the legislature. We agree and reverse his


Facts and Procedural History

Roger Engel was convicted of burglary in the second degree, a felony.

RCW 9A.52.030. The charge arose out of the theft of aluminum auto wheels

from the business premises of Western Asphalt. Western Asphalt is located in a

rural, unincorporated area of King County consisting mostly of undeveloped

acreage and farms. The business premises cover between seven and eight acres

and include several buildings and a large yard. The entrance to the property is

gated. The wheels taken were in the yard near a shed. The theft occurred at

night when the business was closed and the front gate was locked. Security

cameras did not prove how the thieves entered the yard.

One-third of the property is fenced by chain link fence with barbed wire

on the top. This includes the front of the property (i.e., the side fronting the

road), as well as a section of property between the front and piles of rock and

gravel located "down a distance" from the front.1 Verbatim Report of

Proceedings (VRP) (Mar. 21, 2006) at 118. The rest of the property is not

1 The record does not reflect how far down "a distance" is.


State v. Engel, No. 81072-9

fenced, including the edge of the property near the stock piles. Beyond the

gravel piles there is a "pretty sizeable drop-off, a hill that goes down." VRP at

119. Two-thirds of the property is encased by similar terrain, including "banks,

high banks, [and] sloping banks." VRP at 130.2 These banks slope both up and

down from the property.

Directly adjacent to Western Asphalt is its aggregate supplier, a separate

business. The fence on the front of Western's property extends along the front

of its supplier's property as well. No fence or gate separates the two properties.

The two properties are connected by an internal service road.

The trial court instructed the jury that to find Engel guilty of burglary in

the second degree, there must be proof beyond a reasonable doubt that he

unlawfully entered or unlawfully remained in a building. The court also

instructed that "[b]uilding, in addition to its ordinary meaning, includes any

fenced area." Clerk's Papers (CP) at 20. The jury was also instructed that if

they could not find Engel guilty of burglary in the second degree, they could

consider whether he was guilty of the lesser included crime of criminal trespass

in the second degree, a misdemeanor. CP at 24; see RCW 9A.52.080. The jury

2 At trial a photograph was admitted into evidence that showed a high, sloping bank bordering
the back of the work yard.


State v. Engel, No. 81072-9

found Engel guilty of burglary in the second degree, and the trial court entered

judgment. CP at 32-37.

Engel appealed, arguing that there was insufficient evidence that he

unlawfully entered or unlawfully remained in a building or fenced area. The

Court of Appeals affirmed in an unpublished decision. State v. Engel, noted at

141 Wn. App. 1006, 2007 WL 2985088. Engel sought review on the sufficiency

of the evidence issue with this court, which was granted.

Standard of Review

This case is a challenge to the sufficiency of the evidence at trial. To

determine whether the evidence is sufficient to sustain a conviction, we view the

evidence in the light most favorable to the prosecution and determine whether

any rational fact finder could have found the essential elements of the crime

beyond a reasonable doubt. State v. Wentz, 149 Wn.2d 342, 347, 68 P.3d 282
(2003). Interpretation of a statute is a question of law that we review de novo.3

Id. at 346.


3 The sufficiency of the evidence here turns on whether Western Asphalt's yard was a fenced
area within the meaning of the burglary statute; if not, then as a matter of law no rational fact
finder could find that the State proved the building element of the crime.


State v. Engel, No. 81072-9

Washington's burglary statute provides that "[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. "'Building', in addition to its ordinary

meaning, includes any . . . fenced area, . . . ." RCW 9A.04.110(5). "Fenced

area" is not defined in the criminal code.

In State v. Roadhs, 71 Wn.2d 705, 707-08, 430 P.2d 586 (1967),

superseded by statute as stated in State v. Wentz, 149 Wn.2d 342, 68 P.3d 282

(2003), burglars were apprehended in an area that was fully enclosed by building

walls and a cyclone fence topped by barbed wire. The burglary statute in effect

at the time applied to any dwelling house, building or other structure containing

certain kinds of property. Wentz, 149 Wn.2d at 348 (citing former RCW

9.19.020 (1909)). At the time, the definition of "building" did not include

"fenced area." Id. (citing former RCW 9.01.010(18) (1909)). Thus, we declined

to find that a fenced area was a "building" for purposes of the burglary statute.

Id. (citing Roadhs, 71 Wn.2d at 707-08). Instead, we found that the fenced area
qualified as an "other structure." Id. at 349. Citing the maxim noscitur a sociis,4

4 The meaning of words may be indicated or controlled by those with which they are
associated. State v. Roggenkamp, 153 Wn.2d 614, 623, 106 P.3d 196 (2005).


State v. Engel, No. 81072-9

we reasoned that

where the fence is of such a nature that it is erected mainly for the
purpose of protecting property within its confines and is, in fact, an
integral part of a closed compound, its function becomes analogous
to that of a "building" and the fence itself constitutes a "structure"
subject to being burglarized.

Roadhs, 71 Wn.2d at 708-09. This became the "Roadhs main purpose test" for

determining whether a fenced area could support a burglary charge. Wentz, 149

Wn.2d at 350.

In 1975, the legislature enacted a new definition of "building" that, for the

first time, explicitly included "fenced area." Id. Wentz was our first opportunity

to apply the new definition in the context of the burglary statute. Id. at 348.

Wentz had climbed a fence into the backyard of a residential home. Id. at 345.

The fence was six-feet tall, solid wood, and surrounded the backyard. Id. The

fence had two gates, both of which were padlocked. Id. The police officer who

apprehended Wentz had to climb the fence to enter the backyard. Id. at 345-46.

Although all nine justices agreed that the backyard in Wentz's case was a

"fenced area," the court split over whether that term needed to be further

defined. Id. at 353, 358. The majority began by dispensing with the Roadhs

main purpose test as obsolete in light of the legislature's addition of "fenced


State v. Engel, No. 81072-9

area" to the definition of "building." Id. at 350. The majority then took a case-

by-case approach and held the ordinary meaning of "fenced area" clearly

encompassed the backyard Wentz had invaded. Id. at 352 (noting that we give

undefined terms their ordinary meaning). But the majority offered no definition

for the "ordinary meaning" of "fenced area."

Justice Madsen concurred expressing concern that the majority should not

imply that any fenced area would support conviction. Id. at 354 (Madsen, J.,

concurring). Justice Madsen proposed that a "fenced area" must be enclosed or

contained, or be so situated as to complete an enclosed or contained area, to

require entry. Id. at 355-57 (citing State v. Petit, 32 Wash. 129, 130, 72 P. 1021

(1903) (holding that burglary statute did not apply to a railroad flat car, even

though the relevant definition of "building" included "railroad car," because a

flat car was not of the same species as the common law's dwelling house, viz., it

was not enclosed to bar entry)).

In this case, Engel argues that the ordinary meaning of "fenced area" is an

area totally enclosed by a fence, and Western Asphalt's yard is not a fenced area

because the hills and slopes surrounding the yard are not like a fence. Engel

argues, in the alternative, that the court should revive the Roadhs main purpose


State v. Engel, No. 81072-9

test to define a fenced area. The State argues that the common understanding of

fenced area includes an area partially enclosed by a fence, where topography and

other barriers combine with the fence to close off the area to the public.

The Court of Appeals adopted the State's argument. Noting that the yard

is "surrounded by natural barriers" and a fence, the court held that the

combination of terrain and fencing created a "fenced area." Engel, 2007 WL

2985088, at *4 (citing Justice Madsen's "enclose or contain" language from


Construction of a statute is a question of law. Wentz, 149 Wn.2d at 346.

Where the language of a statute is clear, legislative intent is derived from the

language of the statute alone. Id. The "plain meaning" of a statutory provision

is to be discerned from the ordinary meaning of the language at issue, the context

of the statute in which that provision is found, related provisions, and the

statutory scheme as a whole. State v. Jacobs, 154 Wn.2d 596, 600-01, 115 P.3d

281 (2005). Courts may also resort to the common law for definitions of terms

not defined by statute. State v. Byrd, 125 Wn.2d 707, 712, 887 P.2d 396 (1995).

A reading that produces absurd results should be avoided, if possible, because

we presume the legislature does not intend them. State v. Vela, 100 Wn.2d 636,


State v. Engel, No. 81072-9

641, 673 P.2d 185 (1983). If the provision is subject to more than one

reasonable interpretation, it is ambiguous. Jacobs, 154 Wn.2d at 600-01.

Because the ordinary meaning of "fenced area" encompasses areas both

partially and totally enclosed by a fence, we look to the phrase's context to

determine its plain meaning.5 A provision in the criminal code provides that

courts may supplement criminal statutes with consistent common law provisions.

RCW 9A.04.060. Thus, the plain meaning of "fenced area" may be ascertained

by examining the common law.

"'[C]ommon-law burglary found its theoretical basis in the protection of

man's right of habitation. Blackstone wrote that burglary was a heinous offense

because of its invasion of this right. . . .'" Wentz, 149 Wn.2d at 356 (Madsen,

J., concurring) (quoting 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive

Criminal Law § 8.13(c) (1986 & Supp. 2003)). "Burglary" was defined by the

common law to be the breaking and entering of the dwelling house of another in
the nighttime with the intent to commit a felony.6 3 Wayne R. LaFave & Austin

5 "[F]ence" is defined as "to surround, separate, or delineate with . . . a fence: [to] erect a
fence around or along (as a field or boundary)." Webster's Third New International
Dictionary 837 (2002).

6 The elements of burglary have been expanded substantially by statute. Many kinds of
structures now satisfy the "dwelling" element. RCW 9A.04.110(5). The crime intended no
longer need be a felony. See RCW 9A.52.030. The object of the intended crime may be


State v. Engel, No. 81072-9

W. Scott, Jr., Substantive Criminal Law § 21.1 (2d ed. 2003); see also Wentz,

149 Wn.2d at 356 (Madsen, J., concurring) (citing 2 LaFave & Scott, supra,

§ 8.13(c)-(e).

"Fenced area" was not a term expressly defined at common law. But a

fenced area concept was incorporated into the dwelling element of common law


Buildings not used for habitation (such as barns, stables, and
other outhouses) might still be the subject of burglary if they were
part of the . . . curtilage of the . . . . The curtilage originally
signified a fenced-in area, and it would seem that the buildings need
be close enough to the residence to have been included in a
reasonable fencing . . . .

3 LaFave & Scott, supra, § 21.1, at 213-14 (footnotes omitted). Applying the

concept that we may supplement the criminal code with consistent common law,

the term "fenced area" may be understood as a contemporary formulation of the

concept of curtilage. By including "fenced area" in the definition of a building

for burglary, the legislature intended the whole curtilage as a proper object of the

crime, rather than just the buildings in the curtilage.

This interpretation avoids absurd results. Under the State's interpretation,

property, as well as persons. See id. And the elements of breaking and nighttime entry have
been abolished. See RCW 9A.52.030; 1975 Final Legislative Report, 44th Wash. Leg., 1st
Ex. Sess. at 244.


State v. Engel, No. 81072-9

would-be petty criminals who trespass might be liable for burglary even if the

property line at their point of entry were unfenced and unmarked, even if they

remained on the property without approaching any buildings or structures, and

even if the property were such that they could enter and remain without being

aware that it was fenced. Such examples are well outside the category of

offenses the legislature intended to punish as burglary.

The common law context indicates that the plain meaning of "fenced area"

is limited to the curtilage of a building or structure that itself qualifies as an

object of burglary (as defined in RCW 9A.04.110(5)). The curtilage is an area

that is completely enclosed either by fencing alone or, as was the case in Wentz,

a combination of fencing and other structures. This result is consistent with the

common law and avoids absurd results.


Upholding an overly broad definition of "fenced area" would extend

criminal liability beyond what is warranted by the plain language of the statute,

as understood in the context of the common law. Therefore, the Court of

Appeals decision affirming Engel's conviction is reversed and the case is

remanded with instructions to vacate the conviction and dismiss the charge.7


State v. Engel, No. 81072-9

Justice James M. Johnson

Chief Justice Gerry L. Alexander Justice Susan Owens

Justice Charles W. Johnson Justice Mary E. Fairhurst

Justice Barbara A. Madsen

Justice Richard B. Sanders Justice Debra L. Stephens

Justice Tom Chambers

7 The State concedes that this is the appropriate remedy for an insufficiency of evidence
violation. Br. of Resp't at 12 n.6.