Folsom v. State, CR-93-1835

• Citation: 668 So.2d 114
• Decision Date: 28 July 1995
• Docket Number: CR-93-1835
• Parties: Paul FOLSOM v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 114

668 So.2d 114

Paul FOLSOM v. STATE.

CR-93-1835.

Court of Criminal Appeals of Alabama.

July 28, 1995.

Appeal from Jefferson Circuit Court, Nos. CC-93-2098 and CC-93-2099; Alfred Bahakel, Judge.

G. Gregory White, Homewood, for Appellant.

James H. Evans and Jeff Sessions, Atty. Gen., and Yvonne Saxon, Asst. Atty. Gen., for Appellee.

ON RETURN TO REMAND

TAYLOR, Presiding Judge.

The appellant, Paul Folsom, was convicted of sexual abuse in the first degree and of burglary in the first degree, violations of § 13A-6-66 and 13A-7-5, Code of Alabama 1975, respectively. We remanded this case so that the trial court could conduct a Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), hearing. We further instructed the court to determine whether a prima facie case of gender discrimination was established and, in making the determination, not to rely solely on the composition of the jury, a practice condemned by the Alabama Supreme Court in Ex parte Thomas, 659 So.2d 3 (Ala.1994). The court has complied with our directions and has filed the following return to remand:

"According to the count after the strikes, there were nine males and four females, and I selected, by agreement during the course of the case, the trial of the case, at the end of the closing arguments and after I charged the jury, the extra juror, by random draw out of the stack of name cards and by chance.

"....

"Based upon my best recollection at this time, having heard the responses of each of the jurors to the questions that both attorneys during the jury voir dire asked the jurors, and the manner in which they responded to those questions, and having before the Court, the trial Court, all of the information that was had, I did not find a prima facie case of gender discrimination.

"I still do not find a prima facie case of gender discrimination.

"Even though this Court used the term 'makeup,' in reviewing my notes at the time we were having the Batson discussion in chambers, I did not base my decision solely on the composition of the jury, but all of the information I had before the Court at that time in making a finding of a lack of showing of a prima facie case.

"By the same token, the fact that six out of seven strikes are males, as opposed to females, or six of the seven strikes being females, as opposed to males, this Court does not believe to be a determining factor in and of itself, the composition of the strikes, that there is a prima facie showing.

"I, typically, like to listen to the response of a juror, or lack of response, in determining whether there is a sufficient showing, when a motion is made."

It is clear that the court, when determining whether a prima facie case of discrimination existed, considered more than the composition of the jury. A trial court's ruling on a Batson motion is entitled to great deference on appeal. Batson, 476 U.S. at 98, fn. 21, 106 S.Ct. at 1724, 90 L.Ed.2d at 89. This court will reverse a trial court's ruling only if the ruling is "clearly erroneous." Ex parte Lynn, 543 So.2d 709 (Ala.1988), cert. denied, 493 U.S. 945, 110 S.Ct. 351, 107 L.Ed.2d 338 (1989); Ex parte Branch, 526 So.2d 609 (Ala.1987). The trial court's ruling was not "clearly erroneous."

I

The appellant asserts that there was not sufficient evidence to convict him of burglary. He specifically contends that because his wife, from whom he was separated at the time of the offense, owned the house, and because he had lived there during the marriage, he could not lawfully be convicted of burglary.

The state's evidence tended to show that the appellant and Patricia Criddle were married in August 1992 and that the appellant then moved into Criddle's house. Shortly after the marriage, the appellant became abusive and Criddle asked him to leave. The appellant had stayed in the house for approximately 35 days. The appellant gave Criddle the house keys in September 1992, and Criddle filed for divorce in October 1992. Criddle testified that on several occasions the appellant came to her house and kicked the door open. On December 13, 1992, the appellant kicked the back door open and lunged at Criddle with a knife.

The issue whether a spouse can burglarize the residence of the other spouse was addressed in depth in this court's opinion in White v. State, 587 So.2d 1218 (Ala.Cr.App.1990), aff'd, 587 So.2d 1236 (Ala.1991), cert. denied, 502 U.S. 1076, 112 S.Ct. 979, 117 L.Ed.2d 142 (1992). This court stated:

"In Alabama, '[b]urglary, like trespass, is an offense against the possession, and hence the test for the purpose of determining in whom the ownership of the premises should be laid in an indictment is not the title, but the occupancy or possession at the time the offense was committed.' Hamilton v. State, 283 Ala. 540, 545, 219 So.2d 369, 374, cert. denied, 396 U.S. 868, 90 S.Ct. 134, 24 L.Ed.2d 121 (1969) (quoting Fuller v. State, 28 Ala.App. 28, 30, 177 So. 353, 354 (1937)). 'A person "enters or remains unlawfully" in or upon premises when he is not licensed, invited or privileged to do so.' Ala.Code 1975, § 13A-7-1(4). Under Alabama law, a person who is licensed or privileged to enter premises cannot commit criminal trespass or burglary. Johnson v. State, 473 So.2d 607, 609 (Ala.Cr.App.1985).

"At the time of the crime, the defendant and his wife were separated.

"....

"The law in this regard is stated in 12A C.J.S. Burglary § 38 at 230 (1980):

" 'Some authorities broadly state that a man cannot burglarize his wife's home, and it is considered that the burglary statute is not designed to protect against entries by persons occupying a marital or immediate familial relationship with the legal possessor of property. So, it is held that in the absence of a legal separation agreement, or restraining order, or court decree limiting or ending the consortium rights of the parties, each spouse has a legal right to be with the other spouse on premises possessed by either or both spouses so long as the marriage exists, and entry onto such premises by either spouse cannot be a burglary, although a court order will negate any rights to enter the premises.' (Footnotes omitted.)

"While 'the offense [of burglary] is not committed by one who breaks and enters his own dwelling or other building,' Stanley v. State, 57 Ala.App. 83, 84, 326 So.2d 148, 149 (1976); Wilson v. State, 247 Ala. 84, 85, 22 So.2d 601, 602 (1945), '[i]t has, however, also been held that the mere existence of the marriage relationship does not preclude the one spouse from committing burglary against the other spouse.' " 12A C.J.S. Burglary § 38 (1990 Supp.) (footnote omitted).

"We agree with the holding of the Florida Supreme Court in Cladd v. State, 398 So.2d 442, 443-44 (Fla.1981):

" 'The sole issue presented for review is whether a husband, who is physically but not legally separated from his wife, can be guilty of burglary when he enters premises, possessed only by the wife and in which he has no ownership or possessory interest, without the wife's consent and with intent to commit an offense therein.... We hold that under the particular facts of this case, the defendant could be guilty of burglary of his estranged wife's apartment....

" 'The factual situation is narrow. The defendant and his wife had been separated for approximately six months, although there was no formal separation agreement or restraining order. He had no ownership or possessory interest in his wife's apartment and had at no time lived there. One morning, he broke through the locked door of her apartment with a crowbar, struck her, and attempted to throw her over the second floor stair railing....

"....

" 'We reject the defendant's contention that the marriage relationship and the right of consortium deriving therefrom preclude the State from ever establishing the nonconsensual entry requisite to the crime of burglary.... Since burglary is an invasion of the possessory property rights of another, where premises are in the sole possession of the wife, the husband can be guilty of burglary if he makes a nonconsensual entry into her premises with intent to commit an offense, the same as he can be guilty of larceny of his wife's separate property. In State v. Herndon, 158 Fla. 115, 27 So.2d 833 (1946), discussing a wife's separate property rights, we held that a husband could be charged with the larceny of his wife's separate property, and we explained:

" ' "In a society like ours, where the wife owns and holds property in her own right, where she can direct the use of her personal property as she pleases, where she can engage in business and pursue a career, it would be contrary to every principle of reason to hold that a husband could ad lib appropriate her property. If the common-law rule was of force, the husband could collect his wife's pay check, he could direct its use, he could appropriate her separate property and direct the course of her career or business if she has one. We think it has not only been abrogated by law, it has been abrogated by custom, the very thing out of which the common law was derived."

" '27 So.2d at 835. The defendant's consortium rights did not immunize him from burglary where he had no right to be on the premises possessed solely by his wife independent of an asserted right to consortium.'

"This principle is supported by additional authority:

" 'We reject the position that there is any absolute right on the part of one spouse to be with the other against the other's wishes, giving a right to break into the home of the other with the intent to commit a crime. We adopt the position of the Florida court in Cladd v. State, Fla., 398 So.2d 442 (1981), of the Ohio court in State v. Herrin, 6 Ohio App.3d 68, 453...