Ray v. State

• Decision Date: 22 March 1988
• Docket Number: No. 86-2288,86-2288
• Citation: 13 Fla. L. Weekly 763,522 So.2d 963
• Parties: 13 Fla. L. Weekly 763 Jerome Edward RAY, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 963

522 So.2d 963

13 Fla. L. Weekly 763

Jerome Edward RAY, Appellant, v. The STATE of Florida, Appellee.

No. 86-2288.

District Court of Appeal of Florida Third District.

March 22, 1988.

Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Asst. Public Defender, for appellant.

Robert A. Butterworth, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., for appellee.

Before SCHWARTZ, C.J., and BASKIN and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

The question presented by this case is whether a defendant can be found guilty of burglary under Section 810.02, Florida Statutes (1985), where he lawfully enters the home of another, and after communicating to the occupant--by word or deed--his intent to commit a crime therein, remains in the home against the occupant's wishes.

I.

Ray was prosecuted on charges of attempted first-degree murder, attempted sexual battery, and burglary with the intent to commit an assault. Charlene Bryant, the alleged victim, testified that on the day of the crimes, she first saw Ray when, returning to the floor on which her apartment was located, she passed him on the stairs where he was seated having a beer with another tenant in the complex. Shortly thereafter, Ray knocked on Bryant's door and asked to come in. Bryant let Ray in, and they sat down. Ray told Bryant that he had overheard her telling the "rent lady" that she was short on the rent. Ray offered to find Bryant a man who would pay her to have sex, but Bryant refused. Their ensuing brief conversation about other things was interrupted by a woman knocking on the door. Both Bryant and Ray went to the door, and Ray left Bryant's apartment. A short time later, Ray again knocked on Bryant's door, and again she let him in. He explained that the woman who had come to the door was his girlfriend. Moments later Ray grabbed Bryant from behind, began choking her, dragged her toward the part of the main room where the bed was located, and tried to force her to have sex with him. Bryant fought him off until the police, summoned by neighbors who heard the struggle, arrived and subdued Ray. ¹ Ray's unwillingness to go peacefully with the police resulted in the lodging of additional charges of resisting an officer with violence and battery upon a police officer. The jury found Ray guilty of battery of a law enforcement officer and burglary of a dwelling with the intent to commit an assault; it acquitted Ray of all other charges. On this appeal, Ray challenges the burglary conviction only. ²

II.

Section 810.02(1), Florida Statutes (1985), defines the crime of burglary ³ as "entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain."

Because, as the State concedes, Ray was invited to enter Bryant's premises and therefore cannot be convicted of the crime of entering, we confine our discussion to the "remaining in" language of the statute.

The phrase "remaining in" has been interpreted as proscribing an act distinct from that of entering. ⁴ In Routly v. State, 440 So.2d 1257 (Fla.1983), the court rejected, as being without merit, the defendant's contention that because he had lawfully entered the decedent's home at the outset, there could be no burglary. The court held that "[t]he burglary statute is satisfied when the defendant 'remains in' a structure with the intent to commit an offense therein. Hence, the unlawful entry is not a requisite element." Id. at 1262. See State v. Belton, 190 Conn. 496, 500, 461 A.2d 973, 976 (1983) ("To enter unlawfully contemplates an entry which is accomplished unlawfully, while to remain unlawfully contemplates an initial legal entry which becomes unlawful at the time the actor's right, privilege or license to remain is extinguished.") (footnote omitted). The interpretation given the statute in Routly complies with the rule of statutory construction that, if possible, meaning should be ascribed to all words in a statute. Terrinoni v. Westward Ho!, 418 So.2d 1143 (Fla. 1st DCA 1982); Pinellas County v. Woolley, 189 So.2d 217 (Fla. 1st DCA 1966); see Chaffee v. Miami Transfer Co., 288 So.2d 209 (Fla.1974). Moreover, such an interpretation follows from the holding that consent is a recognized defense to a charge of unlawful entry in this state. See State v. Hicks, 421 So.2d 510 (Fla.1982); note 3, supra. Since, as the State concedes, the evidence is undisputed that Ms. Bryant consented to Ray's entering the premises, the issue we must address is whether the evidence supports the jury's necessary, albeit implicit, finding that Bryant's consent to Ray's remaining in the premises was withdrawn. Otherwise stated, once consensual entry is complete, a consensual "remaining in" begins, and any burglary conviction must be bottomed on proof that consent to "remaining in" has been withdrawn. ⁵

III.

It is undeniably true that a person would not ordinarily tolerate another person remaining in the premises and committing a crime, and that when a victim becomes aware of the commission of a crime, the victim implicitly withdraws consent to the perpetrator's remaining in the premises. Thus, in Hambrick v. State, 174 Ga.App. 444, 330 S.E.2d 383 (1985), the court held that a jury question was presented regarding whether the victim's struggle with the defendant indicated withdrawal of consent to be on the premises, which would render unauthorized the defendant's remaining there.

"With regard to burglary, Hambrick argues that the evidence is undisputed that he had authority to enter. While that is true, it does not end the matter.... When Hambrick's ulterior purpose beyond the bounds of a friendly visit became known to Arrington [the victim--Hambrick's elderly stepgrandfather], who was the source of the authority, and he reacted against it, a reasonable inference could be drawn that the authority to remain ended. Arrington did not have to shout 'Get out!' for this to be so. Yet Hambrick remained until he got possession of the money, far beyond the time at which the scope of the permission ended."

Hambrick v. State, 330 S.E.2d at 385-86.

Likewise, in Johnson v. State, 473 So.2d 607 (Ala.Crim.App.1985), the court held that for the purpose of satisfying the requirement that the defendant enter or remain unlawfully, the occupant's consent is terminated when the defendant knows or has reason to know that the occupant no longer wants the defendant to remain. Finding that non-consent could be proved by circumstantial evidence, the court inferred that the murder victim had terminated the defendant's license to remain from the circumstances of the brutal murder: there were obvious signs of struggle and the victim had been severely beaten. See also People v. Powell, 58 N.Y.2d 1009, 448 N.E.2d 797, 461 N.Y.S.2d 1012 (1983) (burglary conviction sustained where jury could find that though defendant's entry was lawful, he was not licensed to remain because it was apparent from the time of day and absence of people that the offices were no longer open to the public); People v. Racanelli, 132 Ill.App.3d 124, 87 Ill.Dec. 187, 476 N.E.2d 1179 (1985) (although defendants' entry into apartment was initially with the victim's consent, attack on the victim and removal of his property sufficient evidence that consent had been withdrawn, making subsequent remaining in unlawful); Tribbett v. Commonwealth, 561 S.W.2d 662 (Ky.1978) (defendant remained unlawfully after murder of occupant caused defendant's license to lapse).

In the present case, the evidence demonstrates without question that Bryant verbally and physically resisted the defendant's assault. As in Hambrick, 330 S.E.2d 383, we will not require that Bryant have yelled to the defendant, "Get out!" before we can conclude that the defendant's license to remain on the premises was withdrawn. As the legislative changes indicate, Florida's modern burglary statute focuses on the safety of people and property, Toole v. State, 472 So.2d 1174 (Fla.1985); Anderson v. State, 356 So.2d 382 (Fla. 3d DCA 1978), and these policies are clearly implicated in this case. See State v. Cochran, 191 Conn. 180, 463 A.2d 618 (1983) (potential terror of burglary not lacking even though "burglar" was invited in). Therefore, we agree with the State that Bryant's struggle with the defendant was sufficient evidence that she withdrew her consent to Ray's remaining in the premises, making his remaining in the premises after the withdrawal a burglary.

We have not overlooked that the victim's actions in terminating the offender's authority to remain in the premises places the offender at risk of having an otherwise minor charge against him elevated to burglary. ⁶ Model Penal Code § 221.1, at 71 (Official Draft and Revised Comments) (1980). For example, if a visitor in a home becomes involved in an argument with the host, threatens to hit the host, and is asked by the host to leave, his failure to leave and continued threats would subject the visitor to a burglary charge. Although Professor LaFave argues that this unlawful remaining in ought not be treated as a burglary and that "it is best to limit the remaining-in alternative to where that conduct is done surreptitiously," 2 W. LaFave & A. Scott, Substantive Criminal Law § 8.13, at 468 (1986) (footnote omitted), we are bound to construe our statute as written and not add to it a word--"surreptitiously"--not placed there by the Legislature. See Chaffee v. Miami Transfer Co., 288 So.2d 209 (Fla.1974). Just as the consent defense must be given meaning, so must the "remaining in" alternative. Compare State v. Lockhart, 438 So.2d 1089 (La.1983) (statute lacks "remaining in" alternative; consent to enter complete defense to burglary charge); State v. Thibeault, 402 A.2d 445 (Me.1979) (statute proscribes only "surreptitiously" remaining in). We thus agree with State v. Mogenson, 10 Kan.App.2d...