Appeals court hears argument over whether waterfront boatyard qualifies as a "building" for burglary charges

At oral argument before the Washington Court of Appeals, Division 1, appellant counsel Neil Fox urged the court to limit burglary’s reach where a property’s water-facing edge cannot practically be fenced and to recognize criminal trespass as a possible lesser included offense.

"When the legislature adopted what we used to call the new criminal code in 1975, the drafters were heavily influenced by the idea of kind of these cascading crimes and mental states," Fox said, arguing the statutory concept of a "building" rests on enclosure and an expectation of privacy that waterfront properties may lack.

Fox, who identified himself as representing appellant Arthur Arkalove, told the panel that the boat racks and certain waterfront areas differ from enclosed buildings and that the record did not show an intent to commit a crime inside some of the contested locations. He urged the court to consider lesser included offenses if the burglary elements are not satisfied.

State counsel Andrew E. Orokola, appearing for the State of Washington, countered that appellate precedent and the statute’s text support the jury’s verdicts. "We take all of the state's evidence as true on appeal," Orokola said, and pointed to case law across the judiciary to argue that first-degree criminal trespass is not a lesser included offense of second-degree burglary because the trespass statute contains a knowledge element absent from the burglary statute.

Orokola asked the court to consider photographic exhibits submitted below and said those images show the Seattle Boat Company property was fenced on all landward sides where fencing could be constructed; the only unfenced portion faced the water, where fencing would be virtually impossible. He also urged the panel that boat racks and other structures used to carry on a storage business fit the statute’s alternate definition of "building."

The attorneys debated whether particular trial evidence—defendant testimony that he entered through a fenced area, barricaded himself upstairs, and smeared blood on walls—permits an inference of intent to commit a crime inside the structures. Orokola argued those facts supported the jury’s burglary verdicts and noted court precedent allowing juries to infer criminal intent from means of entry or attempts to force entry.

The panel also queried counsel about restitution and evidence rulings. Fox said there was no request for restitution tied to damage to the Chihuly studio on the appellate record. Orokola and the panel discussed admissibility of audio from body-worn cameras; Orokola argued exclusion under ER 403 would be appropriate if audio were cumulative or would appeal to juror sympathy.

Fox used his brief rebuttal time to emphasize his reading of Supreme Court guidance in Marino, which he said left the specific lesser-included question undecided. "The Supreme Court in Marino made it very clear that it was not deciding the issue of whether or not trespass is a lesser of burglary," Fox told the court, arguing the Court of Appeals’ prior holdings do not fully resolve the issue.

The panel did not announce a decision at the hearing. After the argument concluded, the court thanked counsel and moved on. The outcome remains pending before the court.

Background: The arguments concern whether areas such as boat racks, roofed but open-sided structures, and partially fenced waterfront land meet statutory definitions of "building" or "structure used for carrying on business" for purposes of burglary charges and whether criminal trespass in the first degree can be treated as a lesser included offense of burglary in the second degree. The case will turn on statutory interpretation, prior Washington case law (including Moreno, Marino, and division opinions cited in the hearing), and whether the appellate record contains evidence sufficient to support the jury verdicts.