Technicality? Pierce County man’s burglary conviction tossed for insufficient evidence


A man who spent nearly a year in the custody of the state Department of Corrections is free after his burglary conviction in Pierce County was reversed by an appeals court. Prosecutors conceded they didn’t have sufficient evidence.

In an unpublished opinion authored by Judge Rebecca Glasgow, a three-judge panel of Division II of the Washington State Court of Appeals ordered May 7 that Marshall L. Mittelstaedt’s second-degree burglary case be dismissed with prejudice, meaning charges can’t be refiled.

Mittelstaedt, 53, was released from custody this week, according to Matt Catallo, the defendant’s state-appointed attorney from the Washington Appellate Project. Mittelstaedt served some time at the Monroe Correctional Complex in Snohomish County before he was transferred to a halfway house on community custody in the Tacoma area.

“Elated, and he was very eager to leave when he realized that he was essentially held on an invalid conviction,” Catallo said.

Mittelstaedt was found guilty last year in a jury trial for taking part in a burglary in the early hours of April 11, 2022 at a private property in the Waller area of Pierce County. According to court records, Sheriff’s Department deputies arrested him after finding him and a friend in his truck parked in the uninhabited residence’s driveway, with cow panels worth about $200 stacked on the ground nearby.

He told deputies it was a misunderstanding and that he’d driven to the property to work, not steal. According to a brief filed in his appeals case, Mittelstaedt testified at trial that an associate called him that morning about a job hauling farm equipment. He had suspicions about the job but still went to the property, where the man who’d called him opened a gate and let his truck through.

A lock on the gate had been cut, law enforcement found, but nothing had been taken and no one entered the house on the property. Mittelstaedt’s defense attorney from the Department of Assigned Counsel proposed that jurors hear an instruction for a lesser offense of trespassing, but the court declined to give it. Following his conviction, Mittelstaedt was sentenced to two years in prison.

On appeal, Catallo argued there was insufficient evidence to convict Mittelstaedt because the property had not been entirely enclosed. It was only partially fenced, according to the brief, with at least one gap a person could easily walk through at the front of the property and blackberry bushes on its side. By law, the attorney argued, the property did not count as a building, so there was no evidence Mittelstaedt had committed a burglary.

Pierce County responded to the appeal brief about three months later, agreeing with Catallo’s argument and conceding that the court should reverse and dismiss the burglary charge.

Asked why the Pierce County Prosecuting Attorney’s Office brought the case against Mittelstaedt if it didn’t have sufficient evidence to convict him, spokesperson Adam Faber said the case was charged based on police reports, which did not mention a small gap in the fence.

Evidence on the fence gap came in differently at trial, Faber said, when two police officers and the property owner testified about it. But he said it was raised as an issue for the first time on appeal. Faber said evidence in the case included camera footage of co-defendants cutting the lock to the gate.

“The defendant didn’t even use the fence gap at issue but rather entered through the gate with the cut lock,” Faber wrote in an email. “It is unfortunate that he cannot be held accountable for his conduct due to this legal technicality regarding the fence gap.”

Catallo told The News Tribune he wasn’t surprised by the Prosecuting Attorney’s Office’s take on the case, but he didn’t think Mittelstaedt was getting off on a legal technicality.

“If the evidence doesn’t support the element for the offense, that offense isn’t committed,” he said.

The attorney argued in his appeal brief that the trial court, which was presided over by Superior Court Judge André Peñalver , made an error by not giving the jury a lesser included offense instruction for second-degree trespass. Catallo said he didn’t think it was valid to say there was no way to hold someone accountable for this conduct.

Prosecutors have to act on the information they have at hand, Catallo said, and they don’t have the ability to look at what will later become part of the court record. His question, he said, was whether prosecutors realized the property wasn’t entirely enclosed when they viewed deputies’ body-camera footage.

“I, frankly, just think no one realized that this was a big issue,” Catallo said.

Mittelstaedt was convicted of an offense that he didn’t commit, legally speaking, Catallo said, so in a sense the man was wrongfully convicted. But the attorney said he didn’t think there was anything malicious.