Lanier v. State, CR-97-1656.

• Decision Date: 18 December 1998
• Docket Number: No. CR-97-1656.,CR-97-1656.
• Citation: 733 So.2d 931
• Parties: Timothy LANIER v. STATE.
• Court: Alabama Court of Criminal Appeals

733 So.2d 931

Timothy LANIER v. STATE.

No. CR-97-1656.

Court of Criminal Appeals of Alabama.

December 18, 1998.

Stephen W. Street, Birmingham, for appellant.

Bill Pryor, atty. gen., and Robin Blevins, asst. atty. gen., for appellee.

COBB, Judge.

Timothy Lanier was convicted in the Circuit Court of Jefferson County of two counts of burglary in the first degree. He was sentenced to life in prison for the first count and to 99 years for the second count. Lanier raises the following issues on appeal: (1) Whether the trial court erred in denying Lanier's motion for a judgment of acquittal as to both counts of burglary; and (2) whether the trial court erred in denying Lanier's requested jury charge on criminal trespass in the first degree.

Facts

The facts of this case involve two burglary charges. The second burglary charge (hereinafter referred to as the "Lawson burglary") relates to a breaking and entering that occurred while the suspects from the first burglary (hereinafter referred to as the "Jennings burglary") were fleeing from the police. The pertinent facts are as follows. On January 12, 1995, Officer Derwin A. Tolbert with the Birmingham Police Department responded to a call reporting a burglary in progress at the home of Mary and Buford Jennings. (R. 45, 89.) Mrs. Jennings had arrived home to find her burglar alarm broken, telephone lines that had been cut, and certain items in the house in disarray, including suitcases packed with her household belongings. (R. 150, 161.) The point of entry for the burglars was the back door, as evidenced by pry marks on that door. (R. 160.) When Officer Tolbert arrived on the scene in response to Mrs. Jennings's call, he approached the Jennings house and heard movement inside. (R. 49.) He then heard what sounded to him like a chain-link fence rattling behind the house, and when he looked, he saw three black men jump over the fence and run away from the house. One of the men was carrying something, but it was not specifically identified. (R. 49, 40, 96, 100, 129-30.)

Tolbert first saw Lanier as Lanier was running to jump over the fence. (R. 101.) He pursued the three men in his patrol car. Lanier and another of the men eventually got into and drove away in a Ford Explorer sport utility vehicle. (R. 49, 138.) Another officer, Sylvester Giles, began chasing the third man on foot through an alley, and Tolbert eventually assisted in the chase on foot. (R. 50.) The officers recovered items that had been discarded by the man, including a pair of jeans and a 9mm gun, both of which were identified by Mary Jennings as belonging to her husband, and a .380 pistol. (R. 53, 129.)

A third officer driving a police car, Theodis Cady, pursued the two men in the Explorer. (R 143.) During the chase, the men were shooting at Officer Cady. Cady chased them until they entered a neighborhood. He ended the pursuit when he could no longer see—broken glass from his bullet-shattered windshield had gotten in his eyes. (R. 464.)

A detective on bicycle patrol who had heard over his radio about the high-speed pursuit arrived in the neighborhood to find the Explorer empty. The detective began searching for the men; during his search, he found a jacket, some guns, and a pair of gloves. (R. 412-13.) He proceeded through an alley where he found a mark in some grass where someone had slipped; that mark led him to a basement door that had been "knocked open," and he called for backup. (R. 414.) The house belonged to Theo and Sherry Lawson. The detective went into the basement and found Lanier crouched under a shelf. When the detective attempted to handcuff Lanier, he fell, Lanier grabbed his gun, pointed it at the detective's head, and instructed the detective not to move. The two wrestled over the gun, and another person placed his hand over the detective's mouth. (R. 415-16.) Lanier eventually escaped from the basement, and the detective regained control of his gun. He held the two other men, Thomas Lee Terry and Lindsey Earl Slaughter III, at gunpoint until backup arrived. (R. 417.)

A detective interviewed Terry later that day, and he told the detective that he and Lanier had used a gun that they had stolen from the Jennings home to shoot at Officer Cady. (R. 455.) Lanier was subsequently convicted of two counts of burglary in the first degree: one conviction for the burglary at the Jennings house and the other for the burglary at the Lawson house.

I.

Lanier contends that the trial court should have granted his motion for a judgment of acquittal because, he says, the State failed to present sufficient evidence. Specifically, Lanier argues (1) that the State failed to prove that Lanier was involved in the Jennings burglary, and (2) that the State failed to prove that Lanier had the necessary intent to commit a felony when he entered the basement of the Lawson house. Because we must remand the cause as to the Lawson burglary charged in Count II of the indictment, we will address only the issue regarding the sufficiency of the evidence to support a conviction in the Jennings burglary, as charged in Count I.

Upon review of a trial court's denial of a motion for a judgment of acquittal, "this court must determine whether any evidence was presented to the trial court when the motion was made that tended to point to the accused's guilt." Sartin v. State, 601 So.2d 1142, 1144 (Ala. Cr.App.1992). In making this determination, "the State's evidence must be received as true[,] ... viewed in a light that is most favorable to the State[, and] ... the State must be accorded all legitimate inferences arising from the evidence presented." Id. Moreover, "[c]ircumstantial evidence is entitled to the same weight as direct evidence, provided it points to the guilt of the accused." K.J. v. State, 690 So.2d 541, 545 (Ala.Cr.App.1997); Andrews v. State, 437 So.2d 661 (Ala.Cr.App. 1983). Insufficient evidence will not be the ground for setting aside a judgment of conviction unless, "allowing all reasonable presumptions for its correctness, the preponderance of the evidence against the judgment is so decided as to clearly convince the reviewing court that it was wrong and unjust." Jackson v. State, 516 So.2d 726, 753 (Ala.Cr.App.1985).

Lanier contends that his conviction for the Jennings burglary was unsupported by the evidence because, he says, the State did not "connect" him with the items removed from the Jennings home. (Appellant's brief, p. 13.) Section 13A-7-5(a), Ala.Code 1975, provides:

"A person commits the crime of burglary in the first degree if he knowingly and unlawfully enters or remains unlawfully in a dwelling with intent to commit a crime therein, and, if, in effecting entry or while in [the] dwelling or in immediate flight therefrom, he or another participant in the crime:

"(1) Is armed with explosives or a deadly weapon."

The State made a prima facie showing that Lanier was guilty of burglary in the first degree as to the Jennings burglary. Even though there was no direct evidence that Lanier entered the Jennings home, the State presented circumstantial evidence from which the jury could infer that Lanier had burglarized the Jennings home.

The State introduced evidence showing that Mrs. Jennings telephoned the police when she noticed that her burglar alarm had been broken and when she saw that many of her belongings had been packed into suitcases. Tolbert, the police officer who initially responded to the call, was immediately dispatched to the Jennings home after receiving a call that there was a possible burglary in progress. When he approached the house, he heard noise inside. Immediately thereafter, he heard a chain-link fence rattling, and he saw Lanier and two other men, Terry and Slaughter, fleeing from the backyard of the Jennings home. Tolbert pursued the three men in his patrol car until two of them, Lanier and Terry, entered an Explorer sport utility vehicle. Either Lanier or Terry fired shots at another police officer who was chasing them in his police car. Tolbert then began chasing Slaughter on foot down an alley while Cady, another police officer, pursued Lanier and Terry in his patrol car. Tolbert chased Slaughter through an alley, and Slaughter discarded certain items as he ran. A .380 pistol and a pair of jeans and a 9mm pistol belonging to Mr. Jennings were recovered from the alley. The door to the Jennings house had marks on it indicating the door had been pried open. During his search for Lanier and Terry, a detective on bicycle patrol found a jacket, guns, and gloves. He noticed a mark in the grass where someone had slipped and an open basement door. He went into the basement and found Lanier, Terry, and Slaughter. While the detective was trying to handcuff Lanier, Lanier took the officer's gun from him and held it to the officer's head. Either Terry or Slaughter placed his hand over the officer's mouth, and Lanier escaped. The police officers who had been involved in the pursuit of Lanier and the detective who found Lanier in the basement identified Lanier in court. (R. 52, 129, 415).

To establish a prima facie case of burglary in the first degree as to the Jennings house, the State must show (1) that Lanier knowingly and unlawfully entered the Jennings house; (2) that Lanier entered the Jennings house with the intent to commit a crime; and (3) that one of the participants was armed with a deadly weapon. See § 13A-7-5(a), Ala.Code 1975. The State met this burden. While the first officer responding to the call did not actually see Lanier inside the Jennings house, the jury could have reasonably inferred from the evidence presented that Lanier had indeed knowingly and unlawfully entered the Jennings house. Immediately after the officer heard noises inside the Jennings house, he saw Lanier jumping the fence in the backyard. If Lanier entered the Jennings house, the entry was unlawful. The pry marks were evidence of a breaking. The intent to take items from the house...