People v. Waddell, No. 98CA0890.

• Docket Nº: No. 98CA0890.
• Citation: 24 P.3d 3
• Case Date: April 27, 2000
• Court: Court of Appeals of Colorado

24 P.3d 3

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Kim L. WADDELL, Defendant-Appellant

No. 98CA0890.

Colorado Court of Appeals, Div. V.

April 27, 2000.

Rehearing Denied July 6, 2000.

Certiorari Denied January 16, 2001.

24 P.3d 4

Ken Salazar, Attorney General, Kathleen M. Byrne, Special Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

David F. Vela, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge KAPELKE.

Defendant, Kim L. Waddell, appeals from the judgment of conviction entered on a jury verdict finding him guilty of two counts of second degree burglary, two counts of attempted third degree sexual assault, and two counts of criminal mischief. We reverse the second degree burglary convictions and affirm the other convictions.

The criminal charges against defendant grew out of his having drilled holes and inserted peeping devices in the bathroom floors of two homes in which he had performed maintenance work.

As to the first residence, a water line had broken, flooding the crawlspace. The residents had retained defendant's employer to undertake the necessary repair work, which entailed replacement of two furnaces located under the home.

Defendant received permission from the residents to enter the crawlspace beneath the house in connection with his work, and he was observed going in and out of the crawlspace.

While he was at the house, defendant drilled a hole in the bathroom floor and inserted a peeping device. The wife took a shower during the time defendant was in the crawlspace.

24 P.3d 5

Later that evening, the son discovered the peephole in the bathroom and notified his parents, who then called the police

The following day, a police officer investigating the case questioned defendant who initially denied having drilled the peephole and having inserted the viewing device. During a second interrogation, however, defendant admitted that he had done so and also told the officer that he had done it once before at another home.

When the police went to the other home, they discovered a hole drilled in the bathroom floor under the sink. The couple living at the other home told the police that defendant had received their permission to work on plumbing, heat vents, and insulation in their crawlspace. The bathroom was located above the crawlspace, which was approximately 30 feet from the work area.

Defendant was initially charged with second degree burglary, attempted third degree sexual assault, criminal mischief, and tampering in relation to the peephole at the first residence.

Thereafter, the prosecution filed an amended complaint, adding three charges of second degree burglary, third degree sexual assault, and criminal mischief relating to the peephole at the second residence.

Prior to trial, defendant moved to suppress his statements to the investigating officer during the second interrogation as having been involuntary. The court denied the motion.

At trial, at the conclusion of the prosecution's case-in-chief, defendant moved for a judgment of acquittal, arguing, as pertinent here, that the prosecution had failed to prove beyond a reasonable doubt an essential element of the charge of burglary: namely, that he had "entered unlawfully" or "remained unlawfully" within the meaning of § 18-4-203, C.R.S.1999. The trial court denied the motion, concluding that there was sufficient evidence from which the jury could conclude that defendant had "unlawfully entered" pursuant to the statute.

I.

Defendant first contends that the evidence was insufficient to sustain his conviction for second degree burglary. Specifically, he argues that because he had permission to enter the crawlspaces of the two homes, the prosecution failed to prove that he unlawfully entered, or unlawfully remained, within the meaning of the statute. We agree.

When presented with a challenge based on the sufficiency of the evidence, we must determine whether that evidence, viewed as a whole and in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable person that the defendant is guilty of the crimes charged beyond a reasonable doubt. People v. Schoondermark, 699 P.2d 411 (Colo.1985).

Section 18-4-203(1), C.R.S.1999, provides, in pertinent part, that:

A person commits criminal second degree burglary, if the person knowingly breaks an entrance into, enters unlawfully in, or remains unlawfully after a lawful or unlawful entry in a building or occupied structure with intent to commit therein a crime against another person or property.

(emphasis added)

A person "enters unlawfully" or "remains unlawfully" in or upon premises when he is not licensed, invited, or otherwise privileged to do so. Section 18-4-201(3), C.R.S.1999; People v. Barefield, 804 P.2d 1342, 1344 (Colo.App.1990); See Cooper v. People, 973 P.2d 1234 (Colo.1999) (to convict a defendant under § 18-4-203, a jury must find that the defendant either: (1) broke and entered or unlawfully entered with the intent to commit a crime therein; or (2) entered lawfully but subsequently remained unlawfully with the intent to commit a crime therein).

A previously granted authority to enter must be withdrawn before a person so authorized can be convicted. See People v. Barefield, supra.

Here, the residents of both homes testified that defendant had permission to enter the crawlspace of their homes. Further, that permission was not withdrawn while defendant was at the homes.

24 P.3d 6

Nevertheless, the People urge that although defendant had permission to enter the crawlspace and was not prohibited from using the bathrooms, he was not authorized to use the bathrooms for the purpose of installing a peephole and also was not authorized to enter areas of the crawlspace to which access was not needed for the repair work. Accordingly, the People argue, an unlawful entry was proven. We reject this contention

The cases relied upon by the People involve situations where the defendant had entered rooms or portions of a building where entry was not permitted. Therefore, those cases are distinguishable. See, e.g., People v. Lopez, 946 P.2d 478 (Colo.App.1997) (although he lived in the family home, defendant committed second degree burglary when he entered his parents' bedroom, which he was prohibited from entering, and stole money from a hidden stash); People v. Barefield, supra (janitor...