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Court: Partial fence not enough for burglary

THURSDAY, JULY 9, 2009, 2:01 P.M.

OLYMPIA — A man suspected of stealing aluminum auto wheels from a rural business wasn’t guilty of a criminal break-in because the property wasn’t fenced on all sides, the state Supreme Court ruled Thursday.

The unanimous ruling overturned the burglary conviction of Roger Dean Engel, who was captured on surveillance video in the outdoor yard of Western Asphalt near Maple Valley.

The company’s yard was about one-third surrounded by a fence topped with barbed wire, with steep embankments, a sizable rock pile, and other natural obstacles encircling the rest of the property.

Authorities said the surveillance video, taken in early 2005, showed Engel and another man carrying away some aluminum wheels that were placed as bait for scrap-metal thieves.

Engel was convicted of felony second-degree burglary. Under state law, burglary occurs when someone illegally enters a building or enclosed area intending to commit a crime.

The legal definition of a building in such cases can include a fenced area, and King County prosecutors argued that Western Asphalt’s setup should have been considered the equivalent of a complete fence.

“Otherwise, businesses like Western Asphalt would be forced to spend thousands of dollars to erect useless fences in areas that are plainly inaccessible, or clearly off-limits to the public, just to ensure that thieves would be prosecuted as burglars,” Senior Deputy Prosecuting Attorney James Whisman wrote in a legal brief.

But on Thursday, the Washington state Supreme Court said Western Asphalt’s incomplete fence wasn’t enough to justify a burglary conviction. To rule otherwise could bring “absurd results,” Justice Jim Johnson wrote for the court.

“Under the state’s interpretation, 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,” Johnson wrote. “Such examples are well outside the category of offenses the legislature intended to punish as burglary.”

Engel was sentenced to two months in jail for burglary and served his time for that conviction, said his lawyer, Vanessa Mi-jo Lee. “It is a shame that he has completed his sentence for a crime that he shouldn’t have been convicted of.”

But when asked whether it was possible for Engel to be retried on a lesser charge, prosecutor’s spokesman Dan Donohoe said King County doesn’t have viable options for retrying Engel. Prosecutors, however, may seek clarification from the state Legislature on the legal definition of fenced areas in burglary cases, he said.

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