Richardson v. State
Decision Date | 14 August 1984 |
Docket Number | 4 Div. 363 |
Citation | 456 So.2d 1152 |
Parties | Willie James RICHARDSON v. STATE. |
Court | Alabama Court of Criminal Appeals |
L. Gilbert Kendrick, Montgomery, for appellant.
Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appellee.
In May of 1975, Willie James Richardson was indicted and convicted for burglary in the first degree. Sentence was thirty years' imprisonment. In June of 1978, this Court affirmed Richardson's conviction.
Richardson filed a petition for writ of federal habeas corpus which was granted by the United States District Court for the Middle District of Alabama. That Court found Richardson's court-appointed counsel ineffective because he filed a one-sentence "no merit" brief in support of Richardson's direct appeal from his conviction. Richardson v. Bookhart [Ms. March 25, 1983, 81-38-N]. The decision was affirmed in an unpublished opinion by the United States Court of Appeals for the Eleventh Circuit. Richardson v. Bookhart, 729 F.2d 1466 (Ala.1984). That court found that appointed appellate counsel did not follow the procedures outlined in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), and held that See also Mylar v. Alabama, 671 F.2d 1299 (11th Cir.1982). Faced with the choice of setting Richardson free, granting him a new trial, or granting him an appeal with effective counsel, this Court granted the Attorney General's motion, suspended the rules, set aside the previous affirmance, appointed counsel, and granted Richardson this "out-of-time" appeal. On this appeal of his 1975 conviction, Richardson raises four issues.
Initially, Richardson argues that the State failed to prove beyond a reasonable doubt that the burglary was committed "with intent to forcibly ravish" as charged in the indictment. Richardson equates intent to ravish with the intent to have sexual intercourse and contends that evidence which shows that he performed oral-genital sex with the victim does not supply proof of an intent to ravish and shows that his actual intent was to sexually abuse but not rape the victim.
The fourteen-year-old victim testified that she awoke late at night to find the defendant sitting on her bed. He pulled off her pants and began to perform oral sex on her. However, she also testified that the defendant pulled out his sex organ and attempted to have intercourse with her.
We think that testimony affords a sufficient basis upon which to predicate a prima facie case of breaking and entering with the intent to ravish. The gravamen of the offense of burglary is the breaking into of an inhabited dwelling with the intent to commit a felony. It is not required that the intended act be consummated. Hamilton v. State, 270 Ala. 184, 116 So.2d 906, cert. denied, 363 U.S. 852, 80 S.Ct. 1638, 4 L.Ed.2d 1737 (1960).
Richardson's intent was a jury question to be decided from all the surrounding facts and circumstances. 13 Am.Jur.2d Burglary § 52 (1964). Jones v. State, 439 So.2d 1308, 1311 (Ala.Cr.App.1983).
The facts presented in this case afforded the jury ample evidence of Richardson's intent to ravish. See Hamilton v. State, 283 Ala. 540, 546, 219 So.2d 369 (1969) (); Peterson v. State, 441 So.2d 1019 (Ala.Cr.App.1983) ( ); Jones, 439 So.2d at 1310 ; Andrews v. State, 437 So.2d 661 (Ala.Cr.App.1983) ( ); Lowman v. State, 400 So.2d 430, 432 (Ala.Cr.App.), cert. denied, Ex parte Lowman, 400 So.2d 434 (Ala.1981) ( ); Davis v. State, 42 Ala.App. 374, 378, 165 So.2d 918, cert. denied, 276 Ala. 703, 165 So.2d 927 (1964) ( ); Simmons v. State, 40 Ala.App. 98, 100, 108 So.2d 184 (1959) ( ). "An intent to rape may be inferred, in the absence of evidence to the contrary, from the fact that defendant broke and entered through the window of the sleeping room of a girl, put his hand on her person, and, on her awakening, left hurriedly without explanation, or from other circumstances of a similar character." 12 C.J.S. Burglary § 55 (1938). This case is distinguishable from Cook v. State, 409 So.2d 965, 968 (Ala.Cr.App.1981), wherein this Court held that the State failed to sustain its burden of proving an intent to ravish because, although there was evidence of an intent to steal and to murder, there was "no evidence that appellant got into bed with the victim, kissed her, removed her clothes, took off his own clothes, touched her breasts or private parts, or even spoke to her."
Richardson contends that "an indictment for breaking and entering with intent to forcibly ravish requires the State to prove all the elements of rape except consummation of the sexual act." He argues that since consent constitutes a defense to a charge of rape, consent also constitutes a defense to burglary involving the intent to ravish. As authority for these arguments, Richardson cites several cases dealing with the offense of assault with intent to rape. Obviously, assault with intent to rape and burglary involving the intent to ravish are different offenses with distinct elements.
Consent is a defense to a charge of assault with intent to rape, Henderson v. State, 38 Ala.App. 549, 552, 89 So.2d 580, cert. denied, 265 Ala. 696, 89 So.2d 584 (1956), because the offense of assault with intent to rape includes all the elements of rape, except consummation of the sexual act. Hogue v. State, 54 Ala.App. 682, 692, 312 So.2d 86 (1975).
Under Alabama Code 1975, § 13-2-40, defining first degree burglary (not to be confused with burglary as defined in Alabama's new Criminal Code, Alabama Code (1975), § 13A-7-5 et seq.), and at common law, C. Torcia, 3 Wharton's Criminal Law § 338 (1980). Consent is not a defense to breaking and entering with the intent to ravish because "the offense is complete as soon as the premises are broken and entered with the necessary intent, and a conviction of burglary may be sustained despite the fact that defendant changed his mind after entry and committed an offense different from that originally contemplated." 12 C.J.S. Burglary § 2(c) (1938).
Here, there was evidence that Richardson intended to commit some other offense besides rape because he actually sodomized the victim. See Alabama Code 1975, § 13A-6-63, 64. There is also the victim's own testimony that he attempted to have sexual intercourse with her against her consent. Under these facts, the question of Richardson's intent on breaking and entering the dwelling was for the jury.
Richardson contends that the trial judge...
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