Folsom v. State, CR-93-1835

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

Page 114

668 So.2d 114 Paul FOLSOM
v.
STATE. CR-93-1835. Court of Criminal Appeals of Alabama. July 28, 1995.

Page 115

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

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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...