Appeals court upholds convictions for vehicle thief/trespasser

SPOKANE — The Washington Court of Appeals, Division 3, has upheld the convictions of a man who was caught trespassing at the home of a police officer’s parents near Royal City.

Omar Lopez’ appeal stems from an arrest in Royal City involving Royal City Police Department Chief Darin Smith. Smith drove past his parent’s farm house near Royal City and saw an unfamiliar Jeep in the driveway, which raised his suspicions because his parents were out of town.

Smith decided to investigate and Lopez ran away from the chief after seeing him. Smith, who learned the Jeep had been stolen the previous day, found Lopez hiding in a window well on the side of the residence. Prosecutors charged Lopez with second-degree criminal trespassing, possession of a stolen vehicle and possession of burglary tools.

The case headed to a jury trial and Lopez was convicted on the stolen vehicle and trespassing charges. He was acquitted on the burglary tools count and received a 16-month sentence. Lopez’ appeal relates to the jury trial.

His first argument relates to the court denying a proposed jury instruction. The court denied the defense’s proposed instruction that would have instructed the jury that a visitor has an “implied license to enter the property and approach the front door.” The decision states the court denied the instruction after previously instructing the jury on the defense of “implied invitation” to a given property.

“The implied license given to visitors to approach a house and knock on the front door simply was not implicated in this case. Mr. Lopez was prosecuted for running away from the front door and hiding on the property, not for attempting to approach and knock in the first instance,” wrote Judge Kevin Korsmo.

Lopez’ second argument relates to the prosecutor’s closing argument during the jury trial. Lopez was of the belief the prosecutor engaged in misconduct when, in reference to a screwdriver and slingshot that belonged to the Jeep’s owner and were found on Lopez, they argued the was no evidence presented that the items belonged to Lopez and the testimony offered by the owner of the items “was uncontested.”

In order to prove prosecutorial misconduct a defendant is required to demonstrate the prosecutor’s conduct was improper and resulted in prejudice. The problem is that Lopez didn’t object to the prosecutor’s comments during the trial.

“The alleged error in this instance was not so egregious that it was beyond the trial court’s ability to correct. An objection would have led to a reminder that the defendant has no burden of proof or a reminder that Mr. Lopez had no obligation to testify, two subjects upon which the court had already instructed the jury,” wrote Korsmo. “It also would have allowed the prosecutor to correct any misperceptions about her statement for the jury.”