Baise v. State, CR-18-0616

• Decision Date: 25 October 2019
• Docket Number: CR-18-0616
• Citation: 295 So.3d 1137
• Parties: Robert BAISE v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

295 So.3d 1137

Robert BAISE

v.STATE of Alabama

CR-18-0616

Court of Criminal Appeals of Alabama.

October 25, 2019

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.¹

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

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