People v. Waddell, 98CA0890.

Decision Date27 April 2000
Docket NumberNo. 98CA0890.,98CA0890.
Citation24 P.3d 3
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kim L. WADDELL, Defendant-Appellant.
CourtColorado Court of Appeals

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. 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. 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 in public office building committed burglary when he entered a locked office which had a "do not enter" sign, with intent to steal); see also People v. Nichols, 920 P.2d 901 (Colo.App.1996) (inmate committed burglary when he entered cell of another inmate without permission and with intent to steal).

Here, the record indicates that the crawlspace in the first house was compartmentalized. However, the owner specifically permitted defendant to enter that portion of the crawlspace that was under the bathroom. As to the second house, there is no indication in the record that the crawlspace was compartmentalized. In neither instance was permission to enter limited to any discrete portion of the respective crawlspace. Also, we note that the People do not contend that it was the drilling of the hole through the floor that constituted an unlawful entry.

Further, the fact that the defendant entered the crawlspaces or bathrooms with an intent to commit a sexual offense does not, in and of itself, satisfy the "unlawful entry" or "unlawful remaining" element. The defendant's intent is a wholly separate element. In rejecting a similar argument, the supreme court in People v. Carstensen, 161 Colo. 249, 251, 420 P.2d 820, 821 (1966), stated as follows:

To so hold would mean the adoption of a rule that one who enters a building, even with the permission of the owner, but with intent to commit a theft therein, would [a] fortiori be guilty of burglary. Intent at the time of entry in Colorado is not the sole element of burglary under our statute.

See also Stowell v. People, 104 Colo. 255, 90 P.2d 520 (1939).

Thus, because defendant's entry of the respective crawlspaces and bathrooms was not shown to have been unlawful, we conclude that the record, even when viewed as a whole and in the light most favorable to the prosecution, is insufficient to support defendant's convictions of second degree burglary under § 18-4-203.

II.

Defendant next contends that the trial court committed reversible error by not properly advising him of his counsel's conflict of interest. Thus, defendant argues, he did not waive his right to conflict-free counsel. We disagree.

Defense counsel entered his appearance on behalf of defendant on May 15, 1997. At the time, defense counsel was being prosecuted on a felony case by the same district attorney who was prosecuting defendant's case. The same judge was presiding over both cases. Defense counsel had been charged with introduction of contraband into county jail, a class six felony, for having allegedly brought cigarettes to a client after being told by jail officials that he was not permitted to do so. See People v. Holmes, 959 P.2d 406 (Colo. 1998)

. On February 10, 1997, defense counsel had filed a motion to dismiss the charges against him.

At a hearing on April 25, 1997, defense counsel was found in direct contempt of the court for making a disparaging remark to the prosecutor in connection with the court's suggestion of a date for completion of the pending hearing. Defense counsel was sentenced to two days in jail and fined. On May 9, 1997, shortly before making his appearance on behalf of defendant, defense counsel filed a notice of appeal in connection with the contempt finding.

On May 31, 1997, the trial court granted the defense counsel's motion to dismiss the felony charges against him, based on a finding that the statute was unconstitutional. On June 2, 1997, the district attorney filed a notice of appeal. On May 26, 1998, by a four...

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8 cases
  • People v. Auman
    • United States
    • Colorado Court of Appeals
    • September 26, 2002
    ...granted authority to enter is withdrawn, then the person who had authority to enter may be convicted of burglary. People v. Waddell, 24 P.3d 3 (Colo.App.2000). For reasons discussed above concerning "unlawful entry" in connection with the second degree burglary instruction, the jury reasona......
  • People v. Houser
    • United States
    • Colorado Court of Appeals
    • April 18, 2013
    ...which is capable of determination without the trial of the general issue may be raised by motion.”); see also, e.g., People v. Waddell, 24 P.3d 3, 7 (Colo.App.2000) (“[T]he trial court granted the defense counsel's motion to dismiss the felony charges against him, based on a finding that th......
  • People v. Houser
    • United States
    • Colorado Court of Appeals
    • January 31, 2013
    ...which is capable of determination without the trial of the general issue may be raised by motion.”); see also, e.g., People v. Waddell, 24 P.3d 3, 7 (Colo.App.2000) (“[T]he trial court granted the defense counsel's motion to dismiss the felony charges against him, based on a finding that th......
  • People v. Murray
    • United States
    • Colorado Court of Appeals
    • July 26, 2018
    ...and over defense counsel’s objection, the court also agreed to instruct the jury as follows, using language from People v. Waddell , 24 P.3d 3 (Colo. App. 2000) :A previously granted invitation to enter or remain in a dwelling can be withdrawn at any time by the person with authority to gra......
  • Request a trial to view additional results
1 books & journal articles
  • Conflicts of interest in criminal cases: should the prosecution have a duty to disclose?
    • United States
    • American Criminal Law Review Vol. 47 No. 3, June 2010
    • June 22, 2010
    ...and defense counsel were involved together in the cocaine-related transactions for which defendant was being charged); People v. Waddell, 24 P.3d 3, 7-8 (Colo. App. 2000) (holding that defendant had effectively waived conflict when defense counsel was also under prosecution by same district......

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