State v. Hawkins

• Decision Date: 29 October 1998
• Docket Number: No. 971398-CA,971398-CA
• Citation: 967 P.2d 966
• Parties: 355 Utah Adv. Rep. 13 STATE of Utah, Plaintiff and Appellee, v. John D. HAWKINS, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 966

967 P.2d 966

355 Utah Adv. Rep. 13

STATE of Utah, Plaintiff and Appellee, v. John D. HAWKINS, Defendant and Appellant.

No. 971398-CA.

Court of Appeals of Utah.

Oct. 29, 1998.

Edward R. Montgomery and Richard A. Van Wagoner, Snow Christensen & Martineau, Salt Lake City, for Defendant and Appellant.

Jan Graham, Atty. Gen. and J. Frederic Voros Jr., Asst. Atty. Gen., Salt Lake City, for Plaintiff and Appellee.

Before BILLINGS, GREENWOOD, and ORME, JJ.

OPINION

GREENWOOD, Judge:

Defendant John D. Hawkins was charged by information with burglary, a third degree felony, in violation of Utah Code Ann. § 76-6-202 (1995), and with theft, a third degree felony, in violation of Utah Code Ann. § 76-6-404 (1995). The jury found him guilty of theft, a Class A misdemeanor, a lesser included offense of the charged third degree felony theft, and of burglary, a third degree felony. Defendant appeals his burglary conviction. We affirm.

BACKGROUND ¹

In July 1995, defendant subleased shop space in an industrial park from Tim Markham, his first cousin once removed. Tim's sister, Gloria Markham, was the signatory on the actual rental agreement for two adjoining shops--Units 98 and 99--but it was through Tim Markham that defendant arranged to sublease Unit 98. The sublease arrangement was an oral, month-to-month agreement, the terms being "[y]ou pay and you stay; you don't and you go." Defendant was to pay $340 per month rent. Defendant did not pay rent for December 1995 or any time thereafter.

Units 98 and 99 were connected by an adjoining door. With the Markhams' permission, defendant worked in both shops and had access to tools and equipment in both. Unit 98 had an outside door and a roll-up overhead door that did not lock properly; however, defendant knew how to disable the substitute locking mechanism so he could gain access by rolling under the door. During the two to three months defendant subleased the shop, he worked on various cars and was known to work at strange hours; many times he was seen working through the night. Around the end of October, defendant "disappeared," leaving some tools, personal items, and a dragster in the two shops. Defendant paid partial rent to the manager of the industrial complex for the month of November, but Tim and Gloria Markham were not aware of this. Defendant was never served with a notice of eviction, but Tim Markham changed all the locks in November 1995, and rented the shop to another sub-lessee. After defendant disappeared in late October 1995, the Markhams repeatedly called defendant and requested he remove his property from the shops.

In the early morning hours of January 13, 1996, another tenant in the industrial park, Jim Severns, was in his unit at the complex. He heard cars and went to investigate. Severns saw "two cars parked there [in front of the Markhams' units], and the drivers were talking to each other." One of the cars left, and the other, driven by defendant, pulled up in front of Mr. Severns' unit. Defendant asked Severns what he was doing there and Severns, who also had not seen defendant for several months, asked defendant the same question. Severns testified that during the conversation, defendant appeared nervous. Defendant stated he was looking for his dog. At that time, the dog ran around the corner and jumped into defendant's car; defendant then drove away. About ten minutes later, sometime around 4 a.m., defendant called Severns two times. The first time, defendant told Severns he had driven by the shop and had seen that the door was open. During the second call, defendant asked Severns to get defendant's belongings out of the units. Severns declined and told defendant he should come by the shop in the daytime to get his things. Severns then went to sleep.

Severns woke up at about 6:30 a.m., walked by Unit 98, and noticed the roll-up door had been kicked in. Severns immediately contacted the Markhams. Upon inspecting the units, Gloria and Tim Markham found that several items were missing. The majority of missing items belonged to defendant, but some of Tim Markham's tools and equipment were missing, as were some tools belonging to Tim's sub-lessee, Rick Pierce. Gloria called Jack Carlton, defendant's boss and business partner, to ask about the missing items. Carlton told her that a family member had pawned the missing items, and that he would get back in touch with her. When she heard nothing for several days, Gloria wrote a letter to defendant asking him to pick up his dragster and other items he had left at the shop and demanding payment for storage fees on the dragster. Several days later, someone broke into the units and removed the dragster. Approximately ten days after the initial burglary, Gloria reported the matter to the police. At trial, both Gloria and Tim testified defendant did not have their permission to be in either unit on January 13, 1996.

Gloria testified she suspected defendant had burglarized the shops because some of defendant's items that had been taken were in locations that only defendant knew about--e.g., his dragster brakes were stored in a closet on a shelf with cans in front of the brakes. Additionally, virtually worthless glass cabinet doors belonging to defendant, which were located "on the side of the dresser up against the wall," were taken. However, the thief did not take valuable items such as a T.V., a VCR, and guitars and amplifying equipment that did not belong to defendant. The Markhams found a garbage can had been loaded with numerous auto-body tools belonging to their new sub-tenant, but the bottom of the garbage can had given out, so any plan to take those items had apparently been abandoned by the thief. There were also dog pawprints all over the shop and its furniture. Witnesses testified they believed them to be the same size as those of defendant's dog. Tim testified that nearly everything missing from the units was defendant's, except defendant's 250 pound compressor was still there, and Tim assumed it had been too heavy for defendant to lift and carry away by himself.

When interviewed by police, defendant initially denied any involvement in the burglary. He claimed that Severns was lying about seeing him at the scene, and said "that wasn't me." Defendant later admitted to police that he did go into the unit on the evening of the burglary, but claimed he did not take anything. At trial, defendant admitted talking to Severns at the complex the night of the burglary, and admitted going into the unit and doing "what I had to do." Nevertheless, at trial, defendant repeatedly claimed that the police reports were inaccurate, that the officers were mistaken in what they wrote, and that several witnesses who had testified were liars.

The jury convicted defendant on both counts. Defendant appeals only the burglary conviction.

ISSUES

On appeal, defendant argues that he was improperly convicted of burglary because he entered the Markhams' property with their permission. Defendant also claims the State offered insufficient evidence to prove he possessed the intent to commit burglary. We address these arguments in turn.

I. Unlawful Entry or Remaining

Section 76-6-201 of the Utah Code states:

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.

Utah Code Ann. § 76-6-201(3) (1995) (emphasis added). In addition, "[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." Id. § 76-6-202(1). Under these provisions, to sustain a conviction for burglary, the evidence must show the defendant was in the building unlawfully, without license or privilege, with the intent to commit theft. To be guilty of theft, however, a person must only "obtain[ ] or exercise[ ] unauthorized control over the property of another with a purpose to deprive him thereof." Id. § 76-6-404. Thus, if the State does not prove an unauthorized entry or remaining, a defendant may not be found guilty of burglary but nevertheless may be convicted of theft. See, e.g., State v. Pitts, 728 P.2d 113, 115-16 (Utah 1986) (per curiam).

Defendant argues the State failed to show that he entered or remained on the premises without license or privilege. Defendant claims the undisputed evidence shows that he received the Markhams' express and unrestricted permission to enter the property, and that this permission was not thereafter revoked. Defendant argues that this permission derived either from his lease, which was never terminated, or from the Markhams' ongoing requests that he remove his belongings from the units. Since his entry was authorized, he asserts, the jury could not properly have convicted him of burglary, but only of theft.

A. Leasehold Interest

Defendant first claims he had a valid lease agreement with the Markhams that was never terminated or revoked. Because the Markhams neither evicted him, told him he was no longer welcome, nor sought return of the key to Unit 98, defendant claims his authority to enter the units at any time was unrestricted and unlimited.

The determination of whether a leasehold exists is a question of law that we review for correctness. See Keller v. Southwood N. Med. Pavilion, 959 P.2d 102, 107 (Utah 1998).

A lease may be abandoned when a tenant "voluntarily relinquishes or vacates the leased premises with the intention to terminate contractual rights to ... possession and control of the premises. The requisite intent can be shown by words or conduct." 49 Am.Jur.2d Landlord and Tenant § 250 (1995). "Abandonment generally occurs when the lessee leaves the rented premises vacant with the clear intention not to pay rent or to be bound by the lease." Id....