State v. Brooks, 16729
| Decision Date | 28 May 1981 |
| Docket Number | No. 16729,16729 |
| Citation | 631 P.2d 878 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Ronnie S. BROOKS, Defendant and Appellant. |
| Court | Utah Supreme Court |
G. Fred Metos, Salt Lake City, for defendant and appellant.
David L. Wilkinson, Earl F. Dorius, Salt Lake City, for plaintiff and respondent.
Defendant was convicted by a jury of the crime of burglary in a dwelling, a felony of the second degree, Section 76-6-202, Utah Code Annotated, 1953, as amended. The trial court, in accordance with its statutory prerogative, Section 76-3-402(1), sentenced him for the next lower category, a third degree felony, to the Utah State Prison for an indeterminate term not to exceed five years. Defendant appeals therefrom. The conviction is reversed and the matter is remanded for a new trial. All statutory references are to Utah Code Annotated, 1953, as amended, unless otherwise indicated.
Defendant was accused of unlawfully entering with an intent to commit theft the basement apartment of Harold Obriant at approximately 11:00 p. m. on June 26, 1979. The resident manager of the apartment complex, Diana Triptow, identified defendant. She testified defendant rang her doorbell sometime between 10:30 and 10:45 p. m., seeking one Vanessa Jackson. Mrs. Triptow informed him the lady lived upstairs in 6-C. Defendant was dressed in gray jogging pants and a silver necklace; he was not wearing a shirt. He had a red ten-speed bicycle beside him. Subsequently, Mrs. Triptow observed defendant walking back and forth in front of her living room window, then he proceeded to walk around the building. Thereafter, she heard the living room window screen rattling on the apartment below her, which was occupied by the Obriants. Then she heard and observed defendant remove the screen from the northeast bedroom of Obriants and enter the apartment. Approximately fifteen minutes later, Mrs. Triptow observed him leave through the same window.
In the interim, Mrs. Triptow summoned the police, who responded in approximately eight to ten minutes. The police talked briefly with Mrs. Triptow and drove about in the parking lot, which was situated in close proximity to the window defendant had entered. The police, however, failed to inspect the window where the entry had been effected. The police instructed Mrs. Triptow to call them again if she saw or heard anything. Almost as soon as the police had departed, Mrs. Triptow heard the bedroom window in the Obrients' apartment open, and defendant emerged therefrom. She again summoned the police, who responded in two to three minutes.
Mrs. Triptow testified that the screen to the bedroom window was lying on the ground and had been bent to remove it. The police located the bicycle, which was concealed near some bushes. The police took the bicycle and put it inside the door in the hallway of the building. While the police were elsewhere in the complex, defendant returned and stated "Tell Able I came to get my bike." A bystander ran to summon the police, but defendant had disappeared. Defendant was arrested several weeks later and charged with burglary.
The victim, Mr. Obriant, was sleeping in the other bedroom in his apartment at the time of the entry. He had substantially impaired hearing, and he initially learned of the events that had transpired when his wife returned from her place of employment and awakened him to inquire what was wrong with the lights. Mr. Obriant testified the screens were intact when he retired. When he awakened one screen in the living room and one in the northeast bedroom had been removed. In the same bedroom, three or four switches in the power panel had been turned off; so there were no lights in the bedrooms and kitchen. The window in this bedroom had been partially opened to promote ventilation, and the door was secured in an open position with a door stop. To reach the power panel, it was necessary to remove the door stop and partially close the door. Nothing was taken from the Obriants' apartment, although there were valuable items in the northeast bedroom, such as, jewelry, a portable television, and a clock. Mr. Obriant testified that there were three rings on a chest of drawers, two were in ring boxes and one was loose. Initially, it appeared that one ring had been taken, but it was subsequently located under the chest. Mr. Obriant testified that the room had not been dusted for a week, and he did not observe on the chest any fingerprints, smudges, or dust removed from someone touching it.
The investigating police officer, Russell Adair, was unable to locate any fingerprints. He testified the dust had been disturbed on the window sill, but there were no prints, just smudges.
Based on the foregoing evidence, defendant moved at the close of the State's case to reduce the charge to criminal trespass, Section 76-6-206, on the ground that the State had failed to show the entry was made with an intent to commit theft. To sustain his motion defense counsel cited the presence of defendant in the apartment for some time (Mrs. Triptow testified fifteen minutes) and with the exception of the ring box being knocked on the floor no item in the room had been moved. The State responded that from the evidence the trial court could not rule as a matter of law that the entry was not made with an intent to commit theft. The State pointed to the tampering with the lights to both bedrooms, the displacement of the ring box from its location on the dresser, and the unobstructed view from the bedroom of the parking lot, where the marked patrol car circled in surveillance of the building. The State argued that defendant could not take heavy items since his transportation was on a bicycle. Further, it would have been unwise to remove any items with the presence of the police in the vicinity and the potentiality of being apprehended. The State urged the entry with an intent to commit theft, under the evidence, was a jury question. The trial court denied defendant's motion but stated there would be an instruction on the lesser offense of criminal trespass.
The trial proceeded, and defendant presented his evidence concerning his alibi, viz., he was attending a barbeque in Rose Park at the time of the alleged offense. The matter was submitted to the jury, and defendant was found guilty of the crime of burglary.
On appeal defendant contends the trial court erred when it denied the motion to reduce the charge to criminal trespass on the ground the State had failed to adduce sufficient evidence proving the requisite intent for burglary.
Section 76-6-202(1) provides:
"A person is guilty of burglary if he enters or remains unlawfully in a building or any portion of a building with intent to commit a felony or theft or commit an assault on any person."
Section 76-6-201(3) provides:
"A person 'enters or remains unlawfully' in or upon premises when the premises or any portion thereof at the time of the entry or remaining are not open to the public and when the actor is not otherwise licensed or privileged to enter or remain on the premises or such portion thereof."
The elements of the crime of burglary are: (1) the act of entering the building, and (2) the specific intent to commit a felony, theft, or assault therein. The act of entering alone does not give rise to an inference that the actor entered with the requisite intent to constitute burglary. The intent to commit a felony, theft, or assault must be proved, or circumstances shown from which the intent may reasonably be inferred. 1 It is the intent to commit a theft, and not the actual theft, which is material. There are reasons why the larceny may not be completed, such as, a change of intention after entering, the failure to find an appropriate object to steal, or detection. In cases where there be an actual stealing, the intention may be more readily apparent, however, the failure to commit a theft, after entry with the intent, is no defense to the crime of burglary. 2
Since the intent to commit a theft is a state of mind, which is rarely susceptible of direct proof, it can be inferred from conduct and attendant circumstances in the light of human behavior and experience. Under this premise, the authorities uniformly agree that where one breaks and enters the dwelling of another in the nighttime, without the latter's consent, an inference may be drawn that he did so to commit larceny. 3 This point is illustrated in People v. Lamica, 4 wherein defendant made an unauthorized entry at 3:00 a. m. by removing the screen on the open window of the victim's bedroom. Defendant fled at the approach of the manager of the apartment building. Defendant asserted the evidence was insufficient to support his conviction. The Court stated that the evidence indicated defendant had made an unauthorized entry into the apartment. The surrounding circumstances, i. e., the manner of entry, the odd hour, and the sudden flight upon being discovered, supported the inference that the required intent to commit theft or a felony was present. Nothing more is required to support a conviction for burglary than proof of an uninvited entry under circumstances which support the conclusion that a burglarious intent was present.
This Court has defined an "inference" as a logical and reasonable conclusion of the existence of a fact in a case, not presented by direct evidence as to the existence of the fact itself, but inferred from the establishment of other facts from which by a process of logic and reason, based upon common experience, the existence of the assumed fact may be concluded by the trier of fact. 5 An inference does not disappear from a case but goes to the fact trier to be weighed along with the contravening evidence because all inferences, which are capable of being drawn from evidence intrinsically containing the seeds from which logical deductions may be made, rest on basic facts which remain in the case. 6
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