Tate v. State

• Decision Date: 25 October 2019
• Docket Number: CR-18-0378
• Parties: Marcus Terrell TATE v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

305 So.3d 254

Marcus Terrell TATE

v.STATE of Alabama

CR-18-0378

Court of Criminal Appeals of Alabama.

October 25, 2019

Rehearing Denied December 20, 2019

Certiorari Denied March 13, 2020

Alabama Supreme Court 1190290

Susan G. James of The James Firm, Montgomery, for appellant.

Steve Marshall, atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appellee.

COLE, Judge.

Marcus Terrell Tate appeals his convictions for first-degree burglary, a violation of § 13A-7-5, Ala. Code 1975, and fourth-degree theft of property, a violation of § 13A-8-5, Ala. Code 1975, and his resulting concurrent sentences of 14 years and 1 year, respectively.

Facts and Procedural History

The evidence at trial showed that Tate broke into an apartment occupied by Theresa Monk and her family and stole a television. (R. 125-26.) Before Monk began living in the apartment, Monk's friend, Kevia Staples, had lived in that apartment. (R. 128.) Tate had previously been Staples's boyfriend, and he had often stayed at the apartment overnight, but apparently had never lived there. (R. 191.) When Staples moved out of the apartment, she subleased the apartment to Monk's boyfriend. (R. 154.) Staples also told Monk that she could have the furniture and other items remaining in the apartment after Staples moved out. (R. 130.)

On December 3, 2016, Monk, her teenaged daughter, and others were entering the apartment when Tate entered the apartment without an invitation and went into the bedroom. (R. 127.) Tate removed a television from the bedroom dresser and left the apartment with the television. (R. 131-33.) After Tate left, Monk locked the front door. Immediately thereafter, Tate kicked the door open, came inside, and removed another television from the living room, together with a game system and cords. (R. 133-36.)

One of the persons with Monk told Tate that the television was not his. Tate lifted his shirt to show them his pistol, and said "it's mine now." (R. 135-36.) Tate left the apartment with both televisions, and Monk telephoned the police. Monk and her daughter identified Tate from a lineup and identified Tate again at trial. (R. 128, 143, 175, 181, 231-32.)¹

Staples testified that she used to date Tate and that Tate had no belongings at the apartment. (R. 191-92.) Staples also testified that she never told Tate that he could take the television in the bedroom. (R. 194.)

Tate did not testify at trial, but the State presented evidence of Tate's interview with police investigators several months after the burglary. Tate's written statement read as follows:

"My name is Marcus Terrell Tate. On December 3rd of 2016, I went over to my old apartment in Woodbend Apartments. I was going to get my T.V.s and had been talking to my ex-girlfriend, Kavia Ellington [Staples], about doing so. When I got there, her friend, Theresa, was there and had been living there. I walked in behind her and got two T.V.s. One was mine and one was--and the other was one I had given to Kavia. I did not bust in the door. It was damaged from a prior incident where I kicked the door in two years prior. I did have a pistol on me in my pocket and it was sticking out, but I never pulled it out. Theresa just let--let me get my stuff and everything was cool. The kids asked who I was and Theresa said she knew me. I then left in my silver Grand Marquis. This statement has been read by me and is true and correct."

(R. 239-40.)

Standard of Review

" ‘In determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider the evidence in the light most favorable to the prosecution.’ Faircloth v. State, 471 So. 2d 485, 489 (Ala. Cr. App. 1984), affirmed, Ex parte Faircloth, [471] So. 2d 493 (Ala. 1985)."

White v. State, 546 So. 2d 1014, 1017 (Ala. Crim. App. 1989).

The standard of review for pure questions of law in criminal cases is de novo. Ex parte Key, 890 So. 2d 1056, 1059 (Ala. 2003).

Discussion

On appeal, Tate claims (1) that the evidence was insufficient to support the verdict, (2) that there was a fatal variance between the indictment and the evidence, and (3) that it violated principles of double jeopardy to convict him of both burglary and theft based on the same incident.

Sufficiency of the Evidence and Variance Between Indictment and Proof

Tate argues (1) that the evidence was insufficient to support the verdict because, he says, the State did not prove that Monk owned or rented the apartment or that she owned the television that was stolen and (2) that, as to both charges, there was a material variance between the indictment and the proof regarding ownership.

Section 13A-7-5, Ala. Code 1975, defines first-degree burglary as:

"(a) A person commits the crime of burglary in the first degree if he or she knowingly and unlawfully enters or remains unlawfully in a dwelling with intent to commit a crime therein, and, if, in effecting entry or while in dwelling or in immediate flight therefrom, the person or another participant in the crime:

"....

"(3) In effecting entry, is armed with a deadly weapon or dangerous instrument or, while in the dwelling or immediate flight from the dwelling, uses or threatens the immediate use of a deadly weapon or dangerous instrument against another person."

(Emphasis added.)

The burglary indictment alleged that Tate

"did on or about December 3, 2016, knowingly and unlawfully enter or remain unlawfully in the dwelling of another, to-wit: Theresa Monk, with intent to commit a crime therein, to-wit: theft of property, and while effecting entry or while in the dwelling or in immediate flight therefrom, the defendant or another participant was armed with a deadly weapon or dangerous instrument, or while in the dwelling or in immediate flight therefrom, use or threaten the immediate use of a deadly weapon or dangerous instrument, to wit: a pistol in violation of § 13A-7-5(a)(3) of the Code of Alabama against the peace and dignity of the State of Alabama."

(C. 12 (emphasis added).)

The circuit court instructed the jury that, to convict Tate of burglary, it must find that Tate "knowingly and unlawfully entered or remained unlawfully in the dwelling of Theresa Monk with intent to commit a crime therein, to-wit, theft of property in the fourth degree." (R. 281.)²

Fourth-degree theft of property is a violation of § 13A-8-5(a), Ala. Code 1975, which provides:

"The theft of property which does not exceed five hundred dollars ($500) in value and which is not taken from the person of another constitutes theft of property in the fourth degree."

Section 13A-8-2(a), Ala. Code 1975, defines "theft of property" as: "(a) A person commits the crime of theft of property if he or she: (1) Knowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his or her property."

The theft indictment alleged that Tate

"on or about December 3, 2016, did knowingly obtain or exert unauthorized control over the property of another, to wit: One (1) Television, the property of, to-wit: Theresa Monk and the property having a value not in excess of Five Hundred Dollars ($500) in violation of § 13A-8-5 of the Code of Alabama against the peace and dignity of the State of Alabama."

(C. 13 (emphasis added).)

With respect to the theft charge, the circuit court instructed the jury that it must find that Tate "knowingly obtained or exerted unauthorized control over the property of Theresa Monk, more specifically, a television," and that Tate "acted with intent to deprive Ms. Monk of her property." (R. 289-90.)

Tate argues (1) that the evidence was insufficient to support a conviction because, he says, the evidence showed that Monk was not the "owner" of the apartment or the television and (2) that there was a material variance between the indictment and the proof regarding Monk's ownership of the apartment and the television. Specifically, Tate argues that the indictment alleged that the dwelling was Monk's, but the evidence at trial refuted that allegation by showing that the apartment was actually being subleased by Monk's boyfriend and that Monk was just visiting. Likewise, Tate argues that the television did not belong to Monk, as alleged in the indictment.

With respect to the burglary charge, Tate argues:

"An essential averment in a charge for an offense against property is the negation of the defendant's ownership or possessory right, so as to affirmatively show that the property, general or special, against which the crime is laid, is in another. E[d]monds v. State, 87 Ala. 12, 6 So. 54. Wilson v. State, 247 Ala. 84, 22 So. 2d 601 (1945)."

(Tate's brief, p. 20.)

This argument fails because "[b]urglary, like trespass, is an offense against the possession, and hence the test for the purpose of determining in whom the ownership of the premises should be laid in an indictment is not the title, but the occupancy or possession at the time the offense was committed." Folsom v. State, 668 So. 2d 114, 116 (Ala. Crim. App. 1995) (citations omitted). See also Gaines v. State, 460 So. 2d 240, 241 (Ala. Crim. App. 1984) (where the building burglarized was occupied by the establishment named in the indictment "it [is] immaterial who owned the building"); Hamilton v. State, 283 Ala. 540, 545, 219 So. 2d 369, 374 (1969) (dwelling owned by a family member of the person alleged in the indictment to be in possession of the dwelling); Fuller v. State, 28 Ala. App. 28, 29, 177 So. 353, 354 (1937) (store operated by the wife of the person named in the indictment as the owner).

To prove burglary, the State does not need to prove who has legal title to the burglarized building or dwelling, or the exact nature of the victim's ownership interest. Instead, it is enough that the State prove that the victim had a right to possess or occupy the building and that the defendant did not have ownership or a right of possession or occupancy.

Tate's citations...