Litton v. Com.

• Decision Date: 01 April 1980
• Citation: 597 S.W.2d 616
• Court: United States State Supreme Court — District of Kentucky
• Parties: Ronnie Edmond LITTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Page 616

597 S.W.2d 616

Ronnie Edmond LITTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Supreme Court of Kentucky.

April 1, 1980.

Jack Emory Farley, Public Advocate, Kevin M. McNally, J. Vincent Aprile, II, Asst. Public Advocates, Frankfort, for appellant.

Robert F. Stephens, Atty. Gen., Carl T. Miller, Jr., Asst. Atty. Gen., Frankfort, for appellee.

LUKOWSKY, Justice.

Litton was convicted of the second degree burglaries of the Virgie Pharmacy and the adjoining Virgie Clinic. He was sentenced to two consecutive ten year terms of imprisonment. He appeals. We reverse and remand.

This case requires us to judicially define the term "inhabited building" as it is used in the burglary statutes, KRS 511.010-.040. The word "inhabited," added by the 1978 Legislature, is not statutorily defined. Commonly, to inhabit means "to occupy as a place of settled residence or habitat: live or dwell." Webster's Third New International Dictionary 1163. However, the statute uses "dwelling" to mean "a building which is usually occupied by a person lodging therein." KRS 511.010(2). Therefore, a somewhat different meaning must have been intended by the Legislature.

The 1971 commentary to the penal code reveals the attitude of the Legislature toward burglary:

"The crime must be committed in a 'building', defined in KRS 511.010(1) in such a way as to include all structures in which people lodge, work, or otherwise conduct business. With this definition, burglary is designed to encompass all unlawful intrusions which are accompanied by alarm and danger to occupants. It is not intended to provide sanctions for intrusions into things such as vending machines, silos and other structures which do not house persons."

The 1978 amendment provides three distinct categories of burglary: first degree when a dwelling (or other circumstances not here relevant) is involved; second degree when there is unlawful entry into an inhabited building; and third degree when there is unlawful entry into an uninhabited building. These crimes are made class B, C, and D felonies respectively. In order to give effect to this statutory scheme, we conclude that the drafters of the 1978 amendment meant to base the second degree/third degree distinction on the presence or absence of persons in the building at the time of the burglary, because the potential for physical injury is made greater by the presence of other persons who may be encountered in the process of the burglary. See K. Brickey, Kentucky Criminal Law, Secs. 12.04 & 12.05 (1978 Supp.); J. Palmore, I Instructions to Juries in Kentucky, Sec. 3.02 comment (1979 Supp.). This usage of "inhabited building" is in accord with People v. Warwick, 135 Cal.App. 476, 27 P.2d 396 (1933), a case which interpreted a statute making "every burglary of an inhabited dwelling house or building" a first degree burglary. That court held that while a dwelling house does not cease to be "inhabited" when persons are temporarily absent, a building such as a place of business is "inhabited" only when some person is there.

The trial judge defined "inhabited building" in his instructions in terms which would permit conviction of second degree burglary on the basis that the building "is routinely or regularly occupied by a person or persons for periods of time." However as we have demonstrated, second degree burglary is committed only when a person or persons, other than the burglar or burglars, are present in the building at the time of the burglary. Consequently, these convictions must be reversed and a new trial granted. If the evidence is substantially the same on this point at the new trial, the jury should be instructed only on third degree burglary.

Because this case will be retried, it is necessary to address two other issues raised by Litton.

The Commonwealth introduced three photographs which it sought to prove were taken by an automatic camera while the burglary was in progress. Litton argues that the foundation for admission of these photographs was insufficient.

When the investigating officers arrived at the Virgie Pharmacy, they found that the wires to the burglar alarm system had been pulled or cut apart. Later that day they found the automatic camera from the alarm system pedestal in some brush about 150 feet away and across the road from the pharmacy. The wires to this camera matched the ones remaining in the pharmacy. The officers turned the camera over to the owner of the pharmacy who removed the film and sent it to the installer of the burglar alarm who returned these three photographs to the pharmacy owner.

The pharmacy owner explained that the burglar alarm system was only activated upon closing and securing the business during non business hours, that the automatic camera could be started in several ways such as through the magnetic switches on the doors and windows or the motion detector, and that batteries inside the camera would continue its operation even if the wires leading to it were severed. The owner identified the background in the photographs as being a fair and accurate representation of the area behind his pharmacy counter, an area not open to patrons. We conclude that the Commonwealth has laid a minimal foundation which authenticates these three photographs to the extent that it was not error to admit them as real evidence.

Photographs are most commonly admitted into evidence as demonstrative evidence on the theory either that they are merely a graphic portrayal of oral testimony or that a qualified witness adopts the photograph as a substitute for words. See McCormick on Evidence, Sec. 214 (1972); 3 Wigmore on Evidence, Sec. 790 (Chadbourn rev. 1970). When a photograph is used as demonstrative evidence, the witness need not be the photographer, nor must he have any personal knowledge of the time, method, or mechanics of the taking of the photographs. The witness is only required to state whether the photograph fairly and accurately depicts the scene about which he is testifying. See Commonwealth, Dept. of Highways v. Arnett, Ky., 390 S.W.2d 187 (1965); Carson v. Comm., Ky., 382 S.W.2d 85 (1964); G. Lawson, Kentucky Evidence Law Handbook, Sec. 12.05 (1979).

Photographs can be admitted as real evidence in a proper case. As stated in Wigmore:

"With later advancements in the art of photography, however, and with increasing awareness of the manifold evidentiary uses of the products of the art, it has become clear that an additional theory of admissibility of photographs is entitled to recognition. Thus, even though no human is capable of swearing that he personally perceived what a photograph purports to portray (so that it is not possible to satisfy the requirements of the 'pictorial testimony' rationale) there may nevertheless be good warrant for receiving the photograph in evidence. Given an adequate foundation assuring the accuracy of the process producing it, the photograph should then be received as a so-called silent witness or as a witness which 'speaks for itself'."

3 Wigmore on...