Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )       No. 66192-2-I
                                            )    
                      Respondent,           )       DIVISION ONE
                                            )    
              v.                            )       UNPUBLISHED OPINION            
                                            )    
SEBASTIAN LARRY LUBERS,                     )
                                            )
                             Appellant.             )      FILED: March 12, 2012

       Grosse, J.  --  An inference of intent instruction may be given in an attempted 

burglary case when, as here, there is evidence of a forced entry into the building.  

Accordingly, we affirm.

                                            FACTS

       On May 23, 2009 at approximately 4:00 a.m., Rita Limas was asleep on a chair 

in her living room when she awoke to the sound of footsteps outside of her living room 

window.  She saw a flashlight beam in that window and several minutes later saw a 

flashlight shining into her bedroom window.  She then called 911 and told the operator 

that she could hear someone trying to get in through the front window.  The sound was 

loud enough that the operator could also hear it over the phone.  

       Within 20 minutes, police officers arrived and found Sebastian Lubers crawling 

on his hands and knees behind some garbage cans about 30 feet away from Limas'

apartment.  The officers detained Lubers and searched him, finding gloves, a small 

flashlight and two screwdrivers on his person.  Police also examined the screen on 

Limas' front window and observed that it was "forcibly broken" and "bent out" as if  

No. 66192-2-I / 2

someone had been "prying at it with something."                They also observed on the 

windowpane evidence of impact marks consistent with those made by a screwdriver.  

Additionally, police discovered that the light bulb had been removed from the socket 

located above Limas' apartment entrance, while all other apartment entrances were 

illuminated.  An unbroken light bulb was found in the bushes approximately five feet 

away.    

       The State charged Lubers with attempted  residential  burglary and the case 

proceed to a jury trial. The jury found him guilty as charged.  He appeals. 

                                          ANALYSIS

        I.    Inference of Intent Instruction

       Lubers first contends that the trial court erred by giving a jury instruction on the 

inference of intent because there was insufficient evidence of an unlawful entry to 
support this instruction.  That instruction repeats WPIC 60.051 and states:

       A person who enters or remains unlawfully in a building may be inferred to have 
       acted with intent to commit a crime against a person or property therein.  This 
       inference is not binding upon you and it is for you to determine what weight, if 
       any, such inference is to be given.  

Lubers did not object to this instruction.  

        A person commits the crime of attempted residential burglary when, with intent 

to commit that crime, he or she does any act that is a substantial step toward the 
commission of that crime.2     Residential burglary is committed by entering or remaining 

unlawfully in a dwelling with intent to commit a crime against a person or property 

1 11A  Washington Pattern Jury Instructions: Criminal (WPIC)  60.05, at 15 (3d ed. 
2008).
2 RCW 9A.28.020.
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No. 66192-2-I / 3

therein.3  RCW 9A.52.040 creates an inference of intent for burglary cases:

       In any prosecution for burglary, any person who enters or remains unlawfully in 
       a building may be inferred to have acted with intent to commit a crime against a 
       person or property therein, unless such entering or remaining shall be explained 
       by evidence satisfactory to the trier of fact to have been made without such 
       criminal intent.   

       To give an instruction on an inference of an intent to commit a crime in a 

burglary case, there must be evidence of entering or remaining unlawfully in a 
building.4  "Entry" is defined as the entrance of a person, "or the insertion of any part of 

his or her body."5 Our courts have held that fingerprints found on the inside of a broken 

window  amounted to sufficient evidence of entry to support the inference of intent 
instruction in attempted burglary cases.6  

       Here, the evidence showed that Limas heard the defendant forcing open her 

window and the sound was loud enough that even the 911 operator could hear it.  The 

State also presented physical evidence of a forced entry: police testified that the screen 

on the window was "forcibly broken" and "bent out" as if it had been pried open by 

someone.  Thus, the evidence showed that someone had pried open the window from 

the inside, establishing an "entry" of that person into the dwelling.  Accordingly, the trial 

court did not err by giving the inference of intent instruction.
       Lubers' reliance on State v. Jackson7 is misplaced.  In Jackson, the court held 

that it was error to instruct the jury that the defendant's intent to commit a crime within 

3 RCW 9A.52.025.
4 State v. Jackson, 112 Wn.2d 867, 876, 774 P.2d 1211 (1989).  
5 RCW 9A.52.010(4).  
6 State v. Berglund, 65 Wn. App. 648, 829 P.2d 247 (1992); State v. Basset, 50 Wn. 
App. 23, 746 P.2d 1240 (1987).
7 112 Wn.2d 867, 876, 774 P.2d 1211 (1989).  
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No. 66192-2-I / 4

the building may be inferred from the fact that the defendant attempted to enter the building.  

Unlike here, the inference of intent instruction given in Jackson stated that intent to 

commit a crime within a building could be inferred by the defendant's attempt to enter 
the building.8  This was clearly error as it was a misstatement of the law.  But the 

instruction given here did not permit the inference from the fact of an attempted entry; it 

simply reiterated that the jury may infer intent to commit a crime within the dwelling 

upon a showing of entry into the dwelling.  As discussed above, the evidence was 

sufficient to establish such a showing. 

        II.   Opinion on Guilt

       Lubers next contends that one of the police officer's testimony at trial amounted 

to an impermissible opinion on his guilt.  Specifically, he challenges Officer Terry 

Persun's testimony that the flashlight and screwdrivers recovered from Lubers were 

"items . . . typically used in burglaries," and that the flashlight was one "that you would 

find on somebody who's trying to . . . break into cars or break into a house."  The State 

contends that because Lubers failed to object to this testimony as an impermissible 

opinion at trial, he may not now challenge it on appeal because he fails to show it is a 

manifest constitutional error.  We agree.

       Lubers may only challenge the testimony as an impermissible opinion for the first 
time on appeal if he demonstrates that it is a manifest constitutional error.9       To so do, 

he must identify a constitutional error and show how the alleged error actually affected 

his rights at trial. "It is this showing of actual prejudice that makes the error 'manifest,'

8 112 Wn.2d at 872.
9 State v. Kirkman, 159 Wn.2d 918, 936, 155 P.3d 125 (2007).
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No. 66192-2-I / 5

allowing appellate review."10

       Allowing impermissible opinion testimony about the defendant's guilt violates the 
right to an independent determination of the facts by the jury.11          But "[a]dmission of 

witness opinion testimony on an ultimate fact, without objection, is not automatically 

reviewable as a 'manifest' constitutional error.  Rather, "'[m]anifest error' requires a 
nearly explicit statement by the witness."12 As our Supreme Court has explained:

       Requiring an explicit or almost explicit witness statement on an ultimate issue of 
       fact is consistent with our precedent holding the manifest error exception is 
       narrow.
              Requiring an explicit or almost explicit statement by a witness is also 
       consistent with this court's precedent that it is improper for any witness to 
       express a personal opinion on the defendant's guilt.[13]   

       As the State contends, Lubers fails to show that any of the challenged comments 

amounted to an explicit personal opinion of his guilt.  The officer did not offer an 

opinion or personal belief of Lubers' guilt or innocence or comment directly on the 

credibility of a witness. Rather, the testimony was simply about the physical evidence, 

was based on the officer's experience, and still left to the jury the question of whether 
the burglary was caused by the defendant.14  Thus, Lubers fails to demonstrate any 

10 Kirkman, 159 Wn.2d at 926-27 (citations omitted).  
11 159 Wn.2d at 927.
12 159 Wn.2d at 936.  
13 159 Wn.2d at 936-37 (citations omitted).
14 State v. Sanders, 66 Wn. App. 380, 388-89, 832 P.2d 1326 (1992) (officer's opinion 
that lack of drug paraphernalia in defendant's home indicated that occupants did not 
regularly use drugs not an impermissible opinion on guilt in a prosecution for 
possession of cocaine with intent to deliver; opinion was inference based solely on 
physical evidence and officer's experience and did not express opinion on defendant's 
guilt or credibility); State v. Madison, 53 Wn. App. 754, 770 P.2d 662, review denied, 
113 Wn.2d 1002 (1989); State v. Toennis, 52 Wn. App. 176, 185, 758 P.2d 539, review 
denied, 111 Wn.2d 1026 (1988) (testimony in              child abuse cases that particular 
behavior or injuries were consistent with abuse not impermissible opinion on guilt 
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No. 66192-2-I / 6

error, much less manifest constitutional error that may be raised for the first time. 

Consequently, his claim of ineffective assistance of counsel based on the failure to 

object to this testimony is also without basis. 

        III.  Statement of Additional Grounds for Review

       Nor is there merit to the arguments          raised by Lubers in his Statement of 

Additional Grounds for Review.  He first contends that the trial court should have 

granted him a new trial based on ineffective assistance of counsel because trial 

counsel threatened him not to testify when in fact he wanted to testify.  In denying the 

motion, the trial court considered a declaration by trial counsel stating that Lubers had 

expressed his intent not to testify both orally and by letter.  We will not disturb the trial 

court's credibility determinations.   

       Lubers next contends that trial counsel was ineffective by failing to move to 

suppress evidence of a flashlight and gloves because there was conflicting testimony 

about whether these items were recovered or found on Lubers.  Again, these are 

issues of fact that are for the jury to resolve and we will not disturb those factual 

determinations on appeal. 

       Lubers also contends that his conviction lacks support because there was no 

eyewitness testimony that he was actually seen committing the crime and there was no 

DNA  (deoxyribonucleic acid) evidence connecting him to the crime.  But direct 

evidence is not necessary to support a conviction and, as detailed above, there was 

because such testimony still leaves to the jury the question of whether the abuse was 
caused by the defendant).

                                               6 

No. 66192-2-I / 7

sufficient circumstantial evidence that he committed the crime.  

       Lubers further contends that he should have received credit for time served 

while he was booked on an unrelated charged before being booked on this charge.  But 

because Lubers fails to show that the court had authority to apply credit for time served 

on one matter to an additional unrelated matter that occurred after the booking on the 

initial matter, the court properly declined to grant this request.  Finally, Lubers 

reiterates similar arguments raised in the brief, which, as explained above, lack merit.  

       We affirm the judgment and sentence.

WE CONCUR:

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