Opinion
CR-18-0616
10-25-2019
Robert BAISE v. STATE of Alabama
Randy Phillips, Gadsden, for appellant. Steve Marshall, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
Randy Phillips, Gadsden, for appellant.
Steve Marshall, atty. gen., and Beth Slate Poe, asst. atty. gen., for appellee.
WINDOM, Presiding Judge. Robert Baise was convicted of three counts of breaking and entering of a motor vehicle, violations of § 13A-8-11(b), Ala. Code 1975, one count of first-degree criminal trespass, a violation of § 13A-7-2, Ala. Code 1975; and one count of second-degree criminal mischief, a violation of § 13A-7-22, Ala. Code 1975. The circuit court departed from the sentencing guidelines based on the jury's finding the existence of an aggravating factor -- that Baise was serving a community-corrections sentence at the time the offenses were committed -- sentencing Baise as a habitual felony offender to 20 years in prison for each of his convictions for breaking and entering of a motor vehicle, to 1 year in prison for his criminal-mischief conviction, and to 3 months in jail for his criminal-trespass conviction. All sentences were ordered to run concurrently. On appeal, he challenges two of his convictions for breaking and entering a motor vehicle.
Around 3:30 a.m. on September 26, 2016, Timothy Kirby arrived for work at Wood's Transportation, a charter-bus company. Kirby went into the shop area and then walked out to a fenced-in lot. There he noticed a hood up on one of the buses parked in the lot. Kirby walked toward the bus and saw a man under the bus in between the tire, the frame, and the fender. Kirby telephoned the Gadsden Police Department. Before officers arrived, the man came out from under the bus. Kirby recognized the man as Baise. Kirby asked Baise what he was doing and Baise said, "Kirb, I'm hurting." (R. 177.) Baise fled when officers arrived. The bus's top and bottom radiator hoses, transmission lines, and intercooler charging tube had all been cut. Kirby testified that the damage to the bus totaled approximately $2,500.
In the early morning hours on March 5, 2017, Officer Dusty Ford of the Gadsden Police Department responded to a burglary-in-progress call at S & M Motors, a used-vehicle dealer. When Officer Ford arrived at S & M Motors, he "saw a male figure pop up from behind some vehicles and take off running." (R. 249.) Officer Ford chased the man, who was eventually apprehended and identified as Baise. A reciprocating saw was found beside a 2005 Honda Accord vehicle that Baise had been near before he ran away. There were cut marks from the saw blade on the exhaust pipe leading to the catalytic converter underneath the Accord.
A catalytic converter is typically found in the exhaust system of a combustion engine and is designed to reduce the emission of harmful gases.
Approximately one month later, Officer Ford received a tip from another officer regarding suspicious activity at Cowboys Auto Service Center. When he arrived at Cowboys, Officer Ford heard a grinding noise and saw a man "pop up" from underneath a Honda CRV sport-utility vehicle. (R. 269, 274.) The man ran, and when Officer Ford caught him, Officer Ford recognized the man as Baise from the prior incident at S & M Motors. By the CRV, officers found a reciprocating saw, two backpacks, batteries, a charger, sockets, and a wrench. (R. 263-65.) Officer Ford saw damage to the CRV's catalytic converter. (R. 275.)
At trial, Baise denied committing the offenses at Wood's Transportation; however, he did admit that he had attempted to steal parts from the Accord at S & M Motors and the CRV at Cowboys. Baise even stated that he had to use a car jack to lift the Accord to access the area containing the catalytic converter.
At the close of the State's evidence, Baise, relying on this Court's decision in Pack v. State, 461 So. 2d 910 (Ala. Crim. App. 1984), moved for a judgment of acquittal with respect to the charges for breaking and entering the Accord and the CRV. Specifically, Baise argued that, as a matter of law, he did not "enter" any part of these vehicles and, consequently, that the State failed to prove breaking and entering of a motor vehicle under § 13A-8-11(b), Ala. Code 1975. The circuit court denied the motion.
Baise reasserts the same argument on appeal. Baise contends that "there is no evidence or testimony that he ever tried to enter either vehicle; be it the passenger compartment, the engine compartment, under the hood, or the trunk." (Baise's brief, at 22.) Baise claims that "[t]hese are the only areas whose unlawful entry would constitute a burglary." (Baise's brief, at 22.) The State, in response, argues that a person who goes underneath a vehicle and uses a saw in an attempt to remove a part of the vehicle has entered a part of the vehicle under § 13A-8-11(b), Ala. Code 1975.
Regarding the sufficiency of the evidence, this Court has held:
"In deciding whether there is sufficient evidence to support the verdict of the jury and the judgment of the trial court, the evidence must be reviewed in the light most favorable to the prosecution. Cumbo v. State, 368 So. 2d 871 (Ala. Cr. App. 1978), cert. denied, 368 So. 2d 877 (Ala. 1979). Conflicting evidence presents a jury question not subject to review on appeal, provided the state's evidence establishes a prima facie case. Gunn v. State, 387 So. 2d 280 (Ala. Cr. App.), cert. denied, 387 So. 2d 283 (Ala. 1980). The trial court's denial of a motion for a judgment of acquittal must be reviewed by determining whether there existed legal evidence before the jury, at the time the motion was made, from which the jury by fair inference could have found the appellant guilty. Thomas v. State, 363 So. 2d 1020 (Ala. Cr. App. 1978). In applying this standard, the appellate court will determine only if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Willis v. State, 447 So. 2d 199 (Ala. Cr. App. 1983) ; Thomas v. State. When the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for a judgment of acquittal by the trial court does not constitute error. Young v. State, 283 Ala. 676, 220 So. 2d 843 (1969) ; Willis v. State."
Breckenridge v. State, 628 So. 2d 1012, 1018 (Ala. Crim. App. 1993).
In Pack v. State, supra, the appellant was convicted of breaking and entering a vehicle pursuant to § 13A-8-11(b), Ala. Code 1975. The State presented evidence indicating that the appellant had used a tire tool in an attempt to pry open a door of a vehicle.
"[The] car window had been chipped and scratched but not broken, chrome stripping on the side of the vehicle had been damaged, and the door was bent where it had been pried by the tire tool. The doors were still locked, and apparently no entry had been made into the interior of the vehicle, the trunk, or the engine compartment."
Pack, 461 So. 2d at 912. The appellant argued on appeal that the State had failed to prove a prima facie case of unlawful breaking and entering a vehicle because, he said, the evidence failed to show that there was an entering of the automobile as required by § 13A-8-11(b), Ala. Code 1975. In addressing his claim, this Court stated:
" Section 13A-8-11 reads, in pertinent part, as follows:
" ‘(b) A person commits the crime of unlawful breaking and entering a vehicle, if without the consent of the owner, he breaks into and enters a vehicle or any part of the vehicle with the intent to commit any felony or theft. For purposes of this section, "enters" means to intrude:
" ‘(1) Any part of the body; or
" ‘(2) Any physical object connected with the body;
" ‘(3) Unlawful breaking and entering a vehicle is a Class C felony.’
"The State argues that, under the wording of the statute, intrusion of a tire tool into the car door was sufficient to show entry. The trial judge specifically relied upon the wording of this statute in overruling appellant's motion for judgment of acquittal at the close of the State's evidence. The judge stated:
" ‘.... I'm going to hold that jamming the crowbar or the tire tool between the door jamb or in the door jamb area there and prying on the door there and the lock area and messing up the weather stripping and so forth, that that is an intrusion into a part of the car.’
"....
"In order to understand the meaning of ‘enter,’ we must look to prior case law and the legislative history of the statute.
"The commentary to § 13A-8-11(b), Code of Alabama 1975, states that this code section essentially ‘reinstates the former offense of burglary of motor vehicle, former Section 13-2-42’. The commentary also points out the difference between burglary of a building and breaking and entering a vehicle by stating the following:
" ‘Burglary no longer requires proof of a breaking -- only an entry. Hence, while a related crime, the conduct here proscribed is not a lesser included offense of any degree of burglary.’
"Comments, Ala. Code § 13A-8-11(b)(1975) (emphasis added).
"Thus, while burglary of a building no longer requires the showing of both a breaking and an entering, the proof of both elements is required to show an unlawful breaking and entering a vehicle under our present statute. Since the Legislature was careful to maintain both the element of breaking and entering into the wording of the statute, it is necessary to explore what the common law distinction was between these two elements. In the case at bar, we are only dealing with the ‘entry’ element of the statute. Appellant has not contested the breaking element, and we conclude that sufficient proof was presented at trial to constitute a breaking. The law governing the use of an instrument to effect entry is in contest here, and has been explained as follows:
" ‘A ... distinction, however, has been made between the entrance of some part of the body and the introduction of a tool or other instrument, with reference to the purpose with which it was put into the building. Where it is a part of the body itself, its insertion into the building is an entry within the rules of burglary, whether the purpose was to complete the felonious design or merely to effect a breaking. Thus if the miscreant should open a window too small to admit his body, and should insert his hand through this opening merely for the purpose of unlocking a door, through which he intends to gain entrance to the building, he has already made an "entry" even if he should get no farther. But where a tool or instrument is intruded, without any part of the person being within the house, it is an entry if the insertion was for the purpose of
completing the felony but not if it was merely to accomplish a breaking. If the instrument is inserted in such a manner that it is calculated not only to make a breach but also to accomplish the completion of the felonious design this constitutes both a breach and an entry. Hence, if a shot is fired merely to break a lock, there would be no entry even if the bullet landed inside the building, whereas if the weapon had been discharged for the purpose of killing an inmate of the house the entrance of the ball into the dwelling would be sufficient for an entry as the word is used within the rules of burglary.’
"R. Perkins, Perkins on Criminal Law, (2d ed. 1969) (emphasis added). These principles are firmly established in the body of Alabama jurisprudence. See Walker v. State, 63 Ala. 49 (1879) (‘the inquiry is, whether the tool or instrument was employed solely for the purpose of breaking, and thereby effecting an entry; or whether it was employed not only to break and enter, but also to aid in the consummation of the criminal intent, and its capacity to aid in such consummation,’ 63 Ala. at 51 ); Perry v. State, 407 So. 2d 183 (Ala. Crim. App. 1981) (to constitute entry, an instrument must be inserted for the purpose of perpetrating a felony therein); Robinson v. State, 45 Ala. App. 74, 224 So. 2d 675 (1969) (‘the act of prying open a door with an iron bar does not constitute an entry, as it is not used for the purpose of committing a felony therein, but merely of breaking,’ 45 Ala. App. at 78, 224 So. 2d at 679 ).
"We are, of course aware that these cases are applying the entry standard to burglary of buildings. It is clear, however, that the Legislature intended the theory of these cases to apply in the present situation. We are further aided in this result by Texas statutory law. In the committee comments to § 13A-8-11, Code of Alabama 1975, we are directed to Proposed Revision, Texas Penal Code, § 31.06, for insight into subdivision (a)(1) through (a)(4) of § 13A-8-11. Although the comments do not direct us to support for § 13A-8-11(b), Texas has adopted a burglary of vehicles statute, Tex. Penal Code Ann. § 30.03 (Vernon 1974), that is identical to the Alabama unlawful breaking and entering a vehicle statute, § 13A-8-11(b), Code of Alabama 1975. The commentary to the Texas statute states: ‘The definition of "entry", Subsection (b), is also identical to that of burglary, Section 30.02(b). The punishment, however, is less severe ....’ Practice Commentary, Tex. Penal Code Ann. § 30.04 (Vernon 1974).
"We therefore hold that the language of § 13A-8-11(b), Code of Alabama 1975, indicates a legislative intent to adopt the definitions of entry as defined by Alabama decisional law regarding burglary.
"Applying the rules stated above to the fact situation before us, it seems clear that the use of the tire tool, while resulting in a breaking, did not rise to the level of an entry. We interpret the acts of the appellant and his accomplices as an attempt to break into the car rather than a completed act. To rule otherwise would require that we draw no distinction between individuals attempting to break into a vehicle with an instrument and individuals who do actually effect entry into the passenger compartment, engine compartment, trunk, or other part of the vehicle."
Baise relies on Pack to support his assertion that the entry must be into either an enclosed portion of the vehicle or in a part of the vehicle specifically referenced in Pack, such as the passenger compartment, engine compartment, or trunk. Although Pack specifically discussed enclosed parts of a vehicle, this Court did not address whether § 13A-8-11(b), Ala. Code 1975, was intended to protect only areas that are enclosed or what parts of the vehicle are considered to be "interior."
This Court has found no Alabama case directly addressing the issue presented here; however, courts in other jurisdictions with breaking-and-entering statutes similar to § 13A-8-11(b) have found an "entry" in factual situations that did not involve an enclosed part of a vehicle. As we did in Pack, this Court turns to Texas, which has a statute defining burglary of a vehicle that states: "A person commits an offense if, without the effective consent of the owner, he breaks into or enters a vehicle or any part of a vehicle with intent to commit any felony or theft." Tex. Penal Code Ann., § 30.04(a) (Vernon Supp. 2000). Additionally, as in Alabama, the Texas Penal Code defines "enter" as "to intrude any part of the body or any physical object connected with the body" into the motor vehicle or a part thereof. § 30.04(b)(1)-(2). The Texas Court of Criminal Appeals in Richardson v. State, 888 S.W.2d 822 (Tex. Crim. App. 1994), held that an intrusion into the open bed of a truck was sufficient "entry" for burglary purposes. The court's analysis in Richardson is relevant to the question whether a part of the vehicle must be enclosed to be protected under Alabama's breaking-and-entering statute:
"Although it may be open to the elements, the bed of a pickup is clearly an interior portion of the truck itself. There is no need for the bed to be enclosed by a tarpaulin or camper shell or some other structure for it to be protected under § 30.04.
"This interpretation of § 30.04 is consistent with the purpose of burglary statutes generally. Our burglary statutes are intended to protect the sanctity of private areas, be they habitations, buildings not open to the public, or vehicles. When a burglary is committed, the harm results from the entry itself, because the intrusion violates the occupant's reasonable expectation of privacy. Indeed, once unlawful entry is made, the crime is complete, regardless of whether the intended theft of felony is actually completed. Ford v. State, 632 S.W.2d 151, 153 (Tex. Crim. App. [Panel Op.] 1982).
"Given the purpose of the burglary statutes and the rationale for the ‘entry’ requirement, the issue presented requires us to determine whether the Legislature intended to give statutory protection to a truck owner's expectation that the open bed of his vehicle remain a private space that is free from outside intrusions. We believe that this was the intent of the Legislature.3
"3 .... Given the prevalent nature of [trucks], we do not believe that the Legislature intended that § 30.04 protect only the enclosed cab portion of the pickup and not the open bed. If such were the intent of the Legislature, then we would also have to hold that convertibles with retracted roofs or jeep-type vehicles with open passenger areas were similarly unprotected. Such a result was surely unintended."
888 S.W.2d at 824. See also People v. Frey, 126 Ill. App. 3d 484, 81 Ill.Dec. 602, 467 N.E. 2d 302 (1984) (holding that the unauthorized taking of a sledgehammer from the open bed of a truck fell within the scope of its burglary statute).
Florida's caselaw is likewise helpful. Florida's burglary statute, § 810.02(1), Fla. Stat. (2015), which, in part, prohibits the unauthorized entering of a conveyance such as a motor vehicle, requires proof of entry into the vehicle with intent to commit a felony. Even though the Florida statute does not contain language prohibiting entry into "any part thereof" of a vehicle, in Braswell v. State, 671 So. 2d 228 (1996), the Florida District Court of Appeal did not consider the absence of such language to be a significant distinction from other state statutes, such as § 13A-8-11(b), Ala. Code 1975, that do contain the language. In Braswell, the court held that the appellant's reaching into the back bed of a truck to remove a secured cooler was properly considered a partial entry and distinguished that situation from an individual taking a hubcap from a tire's exterior or siphoning gas from a gas tank. The court found the situation in Braswell more analogous to situations previously addressed in State v. Harvey, 403 So. 2d 630 (Fla. Dist. Ct. App. 1981), and Anderson v. State, 415 So. 2d 829 (Fla. Dist. Ct. App. 1982).
In State v. Harvey, the court concluded that attempting to remove a starter motor by entering the engine compartment through the underside of the car was sufficient proof of entry:
"The undisputed facts, as set out in appellee's motion to dismiss, show that appellee was observed underneath a car by a deputy sheriff. The hood had not been opened; the doors and windows were shut and had not been disturbed. The deputy found that the bolts holding the starter in place in the engine compartment had been loosened. Appellee admitted to the deputy that he had attempted to remove what he referred to as the alternator, but which was in fact the starter.
"The State argues that these facts constitute an attempted burglary under section 810.02, because appellee ‘entered’ the conveyance within the meaning of the burglary statute. We agree and reverse on the basis of Bragg v. State, 371 So. 2d 1082 (Fla. 4th DCA 1979), which held that opening the hood of the engine compartment intending to remove a battery is burglary. We see no distinction as to whether appellee came from underneath the engine compartment, from the top, or from the side; he is still guilty of attempted burglary. Here, appellee unlawfully entered a conveyance (by attempting to take a portion thereof), the property of another, with the intent to commit larceny therein. See Von Edwards v. State, 377 So. 2d 684 (Fla. 1979)."
403 So. 2d 630 (emphasis added).
Similarly, in Anderson v. State, the court held that removing the radiator from an engine compartment of a vehicle lacking a hood on its engine compartment constituted burglary of a conveyance because Florida's burglary statute requires entry of only a portion of the defendant's body into the vehicle. "The fact that only a portion of the defendant's body remained in the compartment or that it only remained there for a minute or two does not eradicate the defendant's guilt. His intrusion plainly violated the possessory intent of the vehicle's owner." 415 So. 2d at 830. In a footnote in the opinion, the court stated:
"The conviction may also be affirmed on the basis that there was an ‘entry’ into the engine. Unlike the acts in R.E.S. v. State, 396 So. 2d 1219 (Fla. 1st DCA 1981) (siphoning gasoline) and State v. Hankins, 376 So. 2d 285 (Fla. 5th DCA 1979) (removal of hubcaps), the defendant here, removed something from inside of a conveyance even though he did not lift the hood to do so. This case is similar to State v. Harvey, 403 So. 2d 630 (Fla. 2d DCA 1981), where the defendant was found underneath the car loosening a bolt in an attempt to remove
the starter. Furthermore, there is no distinction, for purposes of the burglary statute, between entering the passenger compartment and entering the engine. Bragg v. State, 371 So. 2d 1082 (Fla. 4th DCA 1979)."
Anderson, 415 So. 2d at 830, n.1 (emphasis in original).
Baise's argument focuses on his contention that he was not in the engine compartment; rather, he says, he was underneath the floorboard; therefore, he claims, he did not "enter" the vehicle. In Pack, this Court listed an engine compartment along with the passenger compartment and the trunk as parts of the vehicle that would be protected under the statute; however, the list set forth in Pack was not exhaustive or exclusive. See Pack, 461 So. 2d at 917 ("To rule otherwise would require that we draw no distinction between individuals attempting to break into a vehicle with an instrument and individuals who do actually effect entry into the passenger compartment, engine compartment, trunk, or other part of the vehicle." (emphasis added)). Whether Baise was in the engine compartment is not dispositive of this issue, nor is whether the area was physically enclosed. See Richardson, supra, Frey, supra, and Braswell, supra. A person commits the offense of breaking and entering a vehicle under § 13A-8-11(b) if he or she enters a part of the vehicle. Here, this Court is called upon to answer whether the intruded area constitutes a part of the vehicle protected under § 13A-8-11(b). We hold that it does.
In deciding what constitutes a part of the vehicle protected under the relevant statutes and whether an entry into that protected part occurred, other jurisdictions have examined whether the defendants broke "the close of the vehicle," i.e., crossed the planes that enclose the protected space. See, e.g., Richardson, supra, Frey, supra. The "close" has been defined as "the four sides, the bottom, and the imaginary plane extending atop the sides and parallel to the bottom." Frey, 126 Ill. App. 3d at 487, 81 Ill.Dec. 602, 467 N.E.2d at 304. In this case, Baise "broke the close" of the vehicle. The catalytic converter was not merely attached to the outside of the vehicle; the catalytic converter was attached to the underside of the vehicle. During one of the instances for which Baise was charged, Baise had to use a car jack to lift the car to access the catalytic converter. The underside of a vehicle, although not enclosed, is an area in which owner of the vehicle has a reasonable expectation of privacy. The conclusion that the underside of a vehicle and the parts contained within the close remain a private space free from outside intrusions is consistent with the purpose of burglary statutes generally and with the way courts in other jurisdictions have interpreted similar statutes.
Here, Baise "broke the close" of the Accord and the CRV by going underneath the vehicles and, in an attempt to remove the catalytic converters of the vehicles, using a reciprocating saw on the vehicles' exhaust system. Damage from the saws used by Baise was observed on the exhaust pipe of the Accord and on the catalytic converter of the CRV. In other words, Baise inserted a tool into the vehicles "for the purpose of completing the [theft]," Pack, 461 So. 2d at 916 (quoting R. Perkins, Perkins on Criminal Law (2d ed. 1969) (emphasis omitted)); thus, an entry into the vehicles was effected.
In accordance with the holding above, and in viewing the evidence in a light most favorable to the State, sufficient evidence was presented for the jury to conclude that Baise entered the Accord and the CRV within the meaning of § 13A-8-11(b), Ala. Code 1975. Therefore, the circuit court did not err in denying Baise's motion for judgment of acquittal, and this issue does not entitle Baise to any relief.
To the extent that Baise argues on appeal that the circuit court's jury instruction defining "entry" was an incorrect instruction because Baise made no entry into a part of the vehicle with the intent to commit a crime therein, our holding above disposes of this argument as well.
Accordingly, the judgment of the circuit court is affirmed.
AFFIRMED.
Kellum, McCool, Cole, and Minor, JJ., concur.